Local 282 Teamsters

National Labor Relations Board - Board Decisions

Jun 16, 1972

197 N.L.R.B. 673 (N.L.R.B. 1972)

LOCAL 282, TEAMSTERS
Local Union No. 282, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America ' and D. Fortu-
nato, Inc. and The Cement League and its Mem-
ber-Employers, Parties to the Contract , and Build-
ing Contractors Employers Association, Inc. and its
Member-Employers, Parties to the Contract
Local Union No. 282 , affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and C. K.
Refiner, Inc. and Remsco Associates , Inc. Cases
29-CC-230, 29-CC-231, 29-CE-10, 29-CB-738,
29-CC-243, 29-CE- 13, and 29-CC-248.
June 16, 1972
DECISION AND ORDER
On September 15, 1971, Trial Examiner James V.
Constantine issued the attached Decision in this
proceeding. Thereafter, the General Counsel, the
Respondent, and D. Fortunato, Inc., filed exceptions
and supporting briefs.2
The National Labor Relations Board has consid-
ered 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,3 and
conclusions only to the extent consistent herewith.
The underlying issue in this consolidated proceed-
ing is whether section 9 of Respondent's "High Rise
Contract 1969-1972" (herein also called the high rise
clause) which requires, essentially, that the driving of
all trucks to, from, or on construction sites be
performed by employees represented by Respondent,
violates Section 8(e) of the National Labor Relations
Act, as amended. Ancillary issues involve Respon-
dent's conduct vis-a-vis the charging parties; to wit:
whether Respondent's picketing of D. Fortunato,
Inc. (herein called Fortunato), to force Fortunato to
sign the high rise agreement, at a time when
Fortunato already had a current excavating contract
with Respondent, violated Section 8(b)(3) and
8(b)(4)(i)(ii)(A) and (B) of the Act; whether Respon-
dent's picketing of C. K. Rehner (herein called
Rehner) was to force Rehner to implement the high
rise clause and whether such picketing also was for
an object proscribed by Section 8(b)(4)(i)(ii)(B) of the
Act; and, whether Respondent's conduct in seeking
1 Herein called Respondent or Local 282
2 The request of D Fortunato, Inc , for oral argument is hereby denied
In our opinion , the record , including the exceptions and briefs , adequately
presents the issues and positions of the parties
3 The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188
F.2d 362 (C A 3). We have carefully examined the record and find no basis
for reversing his findings.
197 NLRB No. 124
673
to compel Remsco Associates, Inc. (herein called
Remsco), to reassign certain driving work to employ-
ees represented by Respondent violated Section
8(b)(4)(i)(ii)(B) of the Act.
FACTS
1. The high rise agreement
The disputed clause appears as section 9 in the
"High Rise Contract 1969-1972" between Local 282;
The Cement League; the Building Contractors
Employers Association, Inc. (herein called BCEA); 4
and individual employers engaged in the building
and construction industry in New York City and
Nassau and Suffolk Counties. It is quoted in full in
the Trial Examiner's Decision, infra, and requires, in
pertinent part, that:
A. The driving of all trucks on the work site, or
entering or leaving the work site, shall be performed
by employees of the Employer covered by this
Agreement, or by employees of another employer
who receives terms and conditions of employment
at least as favorable to employees as thus [sic] set
forth in this Agreement, provided that trucks
making deliveries to the work site directly from
suppliers located outside the New York Metro-
politan Area may make one drop without comply-
ing with this provision... .
B. The Employer will immediately notify the
Union of all jobs on which it will work and shall
further notify the Union within 30 days of
awarding the subcontract or supply contract the
name address of the sub-contractor or supplier
and such notification shall in all cases be made to
the Union prior to the commencement of work by
the sub-contractor or supplier. In addition, the
Employer will notify the sub-contractors and suppli-
ers of this section and shall write same into the sub-
contract or purchase order.
C. On all jobs with a total gross building cost of
at least $40,000,000 the Employer will at the time
of giving the above 30 days notice arrange to hold
a pre job conference with the Union to consider
methods of assuring compliance with this Section
9. [Emphasis supplied.]
None of the Charging Parties are members of the
4 The Cement League and the BCEA are 2 of the 21 construction
industry employer associations affiliated with the Building Trades Employ
ers' Association of the City of New York (herein called BTEA) The BTEA,
an association of associations , exists to promote , foster, and protect the
interests of employers in the building and construction industry Its
constitution and bylaws require that "All Members shall be bound by the
provisions of all Trade Agreements made by their Trade Association
represented on the Board of Governors and by other Trade Associations
represented on the Board of Governors " The BTEA and its member
associations are parties in interest in this proceeding
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signatory associations and none have signed the high
rise agreement individually.5
a. Background
Respondent concedes that the high rise agreement
was first negotiated in 1968 in response by Local 282
to a continuing 10-year decline in its membership6
which, it asserts , was due to a corresponding loss of
job opportunities for Local 282 members in the
construction industry . Thus , John Cody, vice presi-
dent of Local 282, testified that in the past driving on
construction jobs was "usually " performed by the
general contractor's employees , represented by Local
282, and that these employees did the intrasite
driving for all of the trades performing subcontract-
ing work on the site . The drivers ' work , according to
Cody, included moving materials by truck or trailer
from one area of the construction site to another
(called "Jockeying"); delivering supplies from their
employer 's warehouse or local suppliers to the job;
and transporting their employer 's supplies and
equipment from one jobsite to another . In addition,
Cody testified that in the past most building
materials were available through local suppliers and
delivered to the jobsite by employees represented by
Local 282.
Cody blamed the gradual attrition of work alleged-
ly done previously by Local 282 members on changes
in the industry, the Respondent's inability properly
to police its many and varied contracts , and the
inapplicability of many of these contracts to the
work which signatory employers were actually
performing , notably high rise construction. As
examples, Cody noted that many building materials
and supply firms, which previously employed Local
282 drivers , had moved or gone out of business
entirely as the industry increasingly used newer
prefabricated materials, made outside the New York
metropolitan area and shipped directly by the
manufacturer to the contractor at the jobsite; and
that many subcontractors were using their own craft
employees to drive men and materials to, from, and
around construction sites where they were otherwise
performing craft work . Cody further testified that to
remedy this situation and recoupe for its members
some of the work previously done by them , Local 282
negotiated the original high rise agreement (known
as the "Metropolitan Building Contractors Associa-
tion 1968-1969 Contract") which intended to make
general contractors responsible for all driving to,
from , and on their jobsites. This agreement, as
5 C K Refiner is a member of the Association of Contracting Plumbers
of the City of New York and the Mechanical Contractors Association of the
City of New York, both of which belong to the BTEA Respondent
contends that Rehner, by virtue of its membership in the foregoing
associations, was bound by BTEA's constitution and bylaws (see fn 4, supra)
subsequently renewed in negotiations between Local
282, The Cement League, and BCEA, is the current
High Rise Contract 1969-1972.
In February 1970, Respondent's monthly newslet-
ter to its membership described the high rise clause
and noted its significance in light of Local 282's
impending organizing drive:
The arrival of Spring will be the signal for an
all-out drive by Local 282's Business Agents and
Organizers to consolidate recent achievements
and make further organizational inroads in the
Hi-Rise construction field.
282's organizational spurt will be in keeping
with the spirit-and the letter-of Section IX of
the Local's Hi-Rise agreement which makes the
general contractor responsible for all trucking to,
from and on the job site. Hundreds of jobs hang
in the balance under the terms of this key clause
and every 282 cardholder can benefit handsomely
if we insist upon strict adherence to the con-
tract. .. .
Jobs-more jobs for 282 members-are the
pivotal question here. . . .
Section IX is a contract clause that may yet
prove a union landmark. . . . When stripped
down to its lean language, it offers a shield to
every Local 282 member against the inroads that
other uni,, and non-union outfits would like to
make ag• _st 282's jurisdiction and safeguards
every member's livelihood against all encroach-
ments by cheap on-site labor.
Said Cody: "With pre-casts of every conceiva-
ble description gobbling up work opportunities of
Local 282 men, we had better get busy and stake
out our claims to every on-site trucking and
jockeying job in the Hi-Rise field. . . . With the
cooperation of our membership, Local 282 can
and will enforce this contract to the letter and
thereby create more jobs for our people."
b. Contentions and Trial Examiner's finding
The Respondent contends that the high rise clause
is a lawful primary work preservation provision of
the type upheld in National Woodwork Manufacturers
Association v. N.L.R.B., 386 U.S. 612, as it seeks only
to preserve for unit employees work traditionally
done by them and to prevent signatory employers
from subcontracting such work. Respondent further
contends that the clause covers work which can only
be performed at the site of construction and,
therefore, is exempt from the proscriptions of Section
and, therefore , was also required to honor the high rise agreement.
6 During the last 10 years, according to Cody, the Union 's membership
declined from approximately 7,200 to its present level of about 5,400
members
LOCAL 282, TEAMSTERS 675
8(e) by the construction industry proviso thereof.
And, finally, Respondent contends that the clause
covers work which, in any event, is "fairly claimable"
by the unit employees since it has either been
previously done by them or is so similar and related
to their normal work that they may lawfully claim it
for themselves and preserv e it under the rationale of
Meat and Highway Drivers, Local 710 [Wilson & Co.]
v. N.L.R.B., 335 F.2d 709 (C.A.D.C.).
The General Counsel and Fortunato, on the other
hand, contend that the disputed clause is an unlawful
work acquisition provision as it covers work not now
or previously performed by employees in the several
bargaining units allegedly seeking to preserve such
work, and that the work, therefore, also is not "fairly
claimable" by them. For these reasons, the General
Counsel and Fortunato contend, the clause is not
intended to protect unit work for unit employees but
seeks to benefit Local 282 members generally by
expanding work opportunities for them within the
overall geographic area of Respondent's jurisdiction.
Finally, the General Counsel and Fortunato contend
that the clause in its entirety is outside the protection
of the construction industry proviso to Section 8(e)
and they point to the fact that it covers the work of
driving suppliers' trucks "entering or leaving" con-
struction sites for the purpose of effecting deliveries.
The Trial Examiner found that the high rise clause
is a primary work preservation provision and,
therefore, outside the reach of Section 8(e) of the
Act. For the reasons discussed below, we disagree
with the Trial Examiner's conclusion. Our basic
disagreement with the Trial Examiner stems from his
failure to bottom his conclusion on an analysis of the
work covered by the clause in light of the work
traditionally done by the unit employees here seeking
its protection. Such an examination and analysis is
essential to a determination of legality under Section
8(e) and 8(b)(4)(B).7
c. The work covered by the high rise
agreement
The scope of the high rise clause appears clear on
its face and covers a myriad of work:
(1) The driving of suppliers' trucks "entering or
leaving" the worksite.
(2) The driving of subcontractors' trucks delivering
7 National Woodwork'Manufacturers, supra
8 General Teamsters, Local 982 (J K Barker Trucking Co), 181 NLRB
515, 517-518, and case there cited, enfd 450 F 2d 1322 (C A.D.C.)
9 Note, for example, the "one drop" exemption permitted trucks making
deliveries from suppliers located outside of Local 282 's geographic
jurisdiction, which materials may then be jockeyed only by Local 282
members Further evidence of Section 9's intended reach is found in its
paragraph B, requiring the signatory contractor to notify Local 282 of all
jobs on which it will work , to provide the names and addresses of all
subcontractors and suppliers it intends to use, to advise subcontractors and
materials , tools, and personnel to the worksite or
jockeying materials, personnel, and tools between
locations on the worksite.
(3) The driving of general contractors' trucks
carrying materials, personnel, and tools "entering or
leaving" the worksite or jockeying materials, person-
nel, and tools between locations on the worksite.
The Board has frequently held that driving to and
from construction sites for the purpose of effecting
deliveries does not constitute on-site work and,
hence, is not protected by the construction industry
proviso of Section 8(e).8
Although the Union argues that the disputed clause
is not intended to cover offsite work, the broad
language of section 9, as well as the record evidence
of its intent, belies this contention .9
d. The units claiming protection of the work
The several bargaining units 10 involved here, in
which the Union asserts a right to protect the above-
described work, consist of employees of Fortunato,
Walsh Construction Co., Inc. (herein called Walsh),
Remsco, Rehner, and employer-members of The
Cement League and of BCEA. The record evidence
as to the work now and traditionally performed by
employees, in, these units shows as follows:
(1) Fortunato is the general contractor at the
Hempstead High School construction site, where it is
doing the excavation, concrete, and carpentry work.
It employs, among others, two drivers who are
represented by Respondent and covered by Respon-
dent's separate excavating contract with Fortunato.
These drivers operate Fortunato's dump trucks to
move materials and fill from one location on the
jobsite to another. On rare occasions these drivers
also deliver small amounts of materials from Fortu-
nato's suppliers to the jobsite or move the employer's
materials and tools from one jobsite to another. The
drivers spend about 90 percent of their time on the
jobsite where their work is divided equally between
doing excavating and driving work. At no time have
Fortunato's drivers operated the trucks of its suppli-
ers or subcontractors. Rather, all such trucks
routinely are driven to, from, or on Fortunato's
jobsites by employees of the suppliers and subcon-
tractors. Respondent picketed the jobsite with signs
suppliers of the high rise clause ; and to "write same into the sub-contract or
purchase order " (Emphasis supplied ) In addition , paragraph C requires the
signatory employer, on jobs costing $40 million or more, to hold a prejob
conference with Local 282 to consider methods of assuring compliance with
section 9.
iO The "bargaining unit" for which a union may lawfully seek to preserve
work for its members has been defined as the same unit for which separate
collective bargaining occurs, whether it consists of the employees of a single
employer, or a multiemployer association . United Mine Workers, 165 NLRB
467,468
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claiming that Fortunato does not have a contract
with Local 282.
(2) Walsh is the general contractor for construction
of the Silver Lake Park Water Storage Tanks (herein
called Silver Lake) where it employs drivers who are
represented by Local 282 and are covered by Walsh's
separate excavating contract with Respondent. These
drivers, using Walsh's trucks, perform the jockeying
of materials on the worksite for Walsh and several,
but not all, of its subcontractors. They do not,
however, take over the driving of suppliers' or
subcontractors' trucks on the site. Thus, the electri-
cians employed by Walsh's electrical subcontractor
drive their employer's trucks to, from, and on the
Silver Lake site . Walsh's mechanical plumbing
subcontractor at this site is Remsco Associates,
discussed below. Walsh is also the managing contrac-
tor at the South Beach Psychiatric Center (herein
called South Beach) construction site , where C. K.
Rehner, also discussed below, has a prime contract to
install the interior plumbing. Walsh itself performs
no construction work and has no drivers at this site.
(3) Remsco, as noted above, is Walsh's subcontrac-
tor at the Silver Lake site for the installation of
mechanical plumbing and piping systems and related
services. All of Remsco's employees are plumbers,
covered by a collective-bargaining agreement with
Plumbers Local 371.11 Remsco, as has been its
practice on all jobs for 50 years, used a pickup truck
to transport its employees, as well as small materials
and tools, to, from, and on the Silver Lake site. This
truck is driven by a Remsco employee or supervisor.
After Respondent protested to Walsh and Remsco
about this practice in March and April 1970,
Remsco's employee would drive the pickup truck up
to the worksite. From there Remsco's employees
would carry the small materials and tools onto the
site by hand or by wheelbarrow. When Remsco's
field superintendent once more drove the Remsco
truck onto the site, Respondent told Remsco in the
presence of Walsh 12 that this violated Walsh's
contract with Local 282 and that if Walsh continued
to permit plumbers to drive on the site, Walsh would
not get any concrete on the job. Remsco then agreed
to Walsh's suggestion that it allow Walsh's trucks
and drivers to perform its onsite driving. However,
11 Local 371 of the United Association of Journeymen and Apprentices
of the Plumbing and Pipefittmg Industry of the United States and Canada.
12 Although the Trial Examiner found that this statement by a Local 282
representative , Devito, was made to Remsco and not to Walsh, the record
establishes that it was uttered in the presence of a Walsh representative,
Mariano, at Walsh 's field office trailer In any event , it may fairly be
deduced that Walsh learned of this threat since, immediately after it was
uttered, representatives of Walsh and Remsco met and agreed that
Remsco's materials would be jockeyed by Walsh's trucks and dnvers.
13 The Trial Examiner accepted an offer of proof, made by the General
Counsel, respecting the practice among the remaining Cement League and
BCEA members who did not testify , as follows - Of the Cement League
after Plumbers Local 371 protested to Remsco about
Walsh's drivers doing their work, Remsco reverted to
the hand carrying and wheelbarrow method of
jockeying materials around the jobsite.
(4) Refiner is also in the plumbing and heating
business , employing plumbers and laborers, the
former covered by a contract with Plumbers Local
371. As noted above, Rehner is a prime contractor at
the South Beach jobsite (where Walsh is the
managing, but not the general , contractor). Consist-
ent with its 40-year past practice, Rehner used a
pickup truck, driven by its superintendent or by a
plumber, to transport its men and materials to, from,
and on the job. When Rehner first brought its own
truck to the jobsite, Respondent complained to
Rehner as well as to Walsh that using a plumber to
drive the truck violated certain agreements with
Local 282 to which Rehner assertedly was bound and
that unless Rehner used a teamster on its truck,
Respondent would have to remove some of its
drivers from the job and to picket the job. Respon-
dent picketed the jobsite on June 2, 3, and 4, 1970,
with signs identifying Rehner as the primary employ-
er.
(5) The Cement League, consisting of 36 member
contractors, and the BCEA, consisting of 51 member
contractors, are signatories to the high rise agree-
ment . As more fully set forth in the Trial Examiner's
Decision, representatives of 9 Cement League mem-
bers and 14 BCEA members testified concerning
their practices with respect to construction site
driving. This testimony reveals that many contractors
use no trucks and employ no drivers; some use trucks
but do not employ Local 282 drivers; others use
trucks and employ Local 282 drivers to transport
their tools and equipment from yard to jobsite or
between jobsites. All of the contractors who testified
stated that when they subcontract work, the subcon-
tractors provide their own trucks and drivers and
when they purchase materials and supplies, the
vendors make delivery to the site in their own trucks
driven by their own employees. These contractor
representatives further testified that their drivers do
not take over the driving of subcontractors' or
suppliers' trucks.13 With respect to the contractors
who do not now employ Local 282 drivers, there is
members who did not testify , six would testify that they never use trucks on
their jobs , seven would testify that they use trucks, but do not employ Local
282 dnvers; and eight would testify that they use trucks and employ Local
282 drivers to transport supplies and materials from point to point on
vanousjobsites . Of the BCEA members who did not testify , I I would testify
that they have no trucks and employ no Local 282 drivers; I I others would
testify that they operate one or more trucks which are driven by employees
who are not members of Local 282, and 2 would testify that they have
trucks and employ Local 282 drivers and that these trucks are used for
utility work and the removal of debris and to transfer equipment from
jobsite to jobsite All of the Cement League and BCEA members who did
not testify would testify that their purchases of supplies and materials are
LOCAL 282, TEAMSTERS
no evidence as to whether or not they did so in the
past.
e. Discussion
It is well settled that Section 8(e) and 8(b)(4)(B) of
the Act were not intended to, and do not, outlaw
contract provisions or conduct which seeks to
preserve for employees in the bargaining unit work
which they have traditionally performed.14 Similarly,
these sections also do not proscribe agreements or
conduct aimed at recapturing or reclaiming for unit
employees work which they previously performed or
which otherwise constitutes "fairly claimable"
work.15 However, it is equally well established that
agreements and conduct intended to protect, pre-
serve, acquire, or reclaim work for union members
generally (i.e., outside the immediate bargaining unit)
violate both Section 8(e) and 8(b)(4)(B) of the Act on
the theory that they exceed the legitimate interests of
the unit employees vis-a-vis their own employer and
are therefore tactically calculated to satisfy union
objectives elsewhere.16 The high rise clause, in our
opinion, falls within the latter category.
In the instant case, the employees in the above-
described work units do not now perform, and have
not previously performed for their employers, a
substantial portion of the work which Local 282
assertedly seeks to safeguard for them. Thus,
employees covered in Respondent's separate bar-
gaining agreements with the Cement League, BCEA,
Fortunato, and Walsh do not drive suppliers' trucks
"entering or leaving" their employers' construction
sites for the purpose of making deliveries. They also
do not drive subcontractors' trucks to transport the
subcontractors' personnel, tools, and materials to,
from, and on their employers' construction projects.
To the contrary, such work is done, and has
traditionally been done, by employees of the suppli-
ers and subcontractors who are outside the work
units for which the Respondent is allegedly seeking
to protect the work.
delivered to their jobsites by vendors who use their own trucks and dnvers;
that when they subcontract work the subcontractor provides his own truck
and drivers , and that their drivers do not take over the operation of any
trucks of any vendors or subcontractors
14 National Woodwork Manufacturers Association v. N L.R B, 386 U S.
612 Since the clause there was found to have a lawful work preservation
objective , the Court expressed no opinion on "the questions which might
arise where workers carry on a boycott to reach out to monopolize jobs or
acquire new job tasks when their own jobs are not threatened by the
boycotted product " Id, at 630-631 However, the Court, at 644-645 of its
opinion, said
The determination whether the [disputed clause ] and its enforce-
ment violated Section 8(e) and Section 8 (b)(4)(B) cannot be made
without an inquiry into whether, under all the surrounding circum-
stances, the Union's objective was preservation of work for [the unit]
employees , or whether the agreements and boycott were tactically
calculated to satisfy union objectives elsewhere . . The touchstone is
whether the agreement or its maintenance is addressed to the labor
relations of the contracting employer vis -a-vis his own employees.
677
In light of these facts, we find that the disputed
clause here is unlike that in National Woodwork,
supra, where the union's sole objective was the
protection of traditional unit work of unit employees
from diminution as the result of changes in technolo-
gy. It is also clear, and we find, that the high rise
clause was not intended, as was the clause in Wilson
& Co., supra, to recapture or reacquire work which
the unit employees had actually performed in the
past and which was lost to them as a result of their
employers' partial relocation of operations. Rather,
we find that the clause was intended to benefit all
Local 282 members within the geographic area of
Respondent's jurisdiction. Thus, the record shows
that the clause was negotiated not only to safeguard
unit work but, much more importantly, to recapture
and preserve work which, Respondent claims, Local
282 members have traditionally performed for
employers engaged in all phases of the building and
construction industry-including general contrac-
tors, subcontractors, and suppliers-in the New York
metropolitan area. To achieve this end-and to reach
subcontractors and suppliers who do not now
employ Local 282 drivers-the high rise agreement
makes general contractors responsible for all driving
to, from, and on their construction sites. The
evidence, including the requirement that the high rise
clause be incorporated by signatory employers into
their subcontracts and purchase orders, further
demonstrates that Local 282 was not so much
interested even in expanding the work of unit
,employees as in making sure subcontractors and
suppliers employ Local 282 drivers. In these circum-
stances, it cannot be found that the clause was
addressed to the labor relations of the contracting
employers vis-a-vis their own employees.
Respondent also contends that the clause covers
work which can only be performed at the site of
construction and which is, therefore, protected by the
construction industry proviso. This contention is
contradicted by the evidence and lacking in merit.
[Footnotes omitted ]
Among the considerations deemed relevant by the Court are: (1) the
remoteness of the threat of displacement by the banned product or services,
(2) the history of labor relations between the union and the employers who
would be boycotted ; and (3) the economic personality of the industry
15 Meat and Highway Drivers, Local 710 [Wilson & Co.J v. N LR B, 335
F 2d 709 (C A.D C.); Retail Clerks ' Union, Local No 648 (Brentwood
Markets, Inc), 171 NLRB 1018, cf, International Longshoremen 's Associa-
tion, Local 1248, AFL-CIO (U.S. Naval Supply Center), 195 NLRB No. 41
16 Sheet Metal Workers Union, Local 216 (Associated Pipe and Fitting
Manufacturers), 172 NLRB No 6, Local Union No 98, of the Sheet Metal
Workers' International Association (Cincinnati Sheet Metal and Roofing
Company), 174 NLRB 104, enfd. 433 F.2d 1189 (C.A.D C); Local Union No
141 of the Sheet Metal Workers' International Association (Cincinnati Sheet
Metal Engineering Company), 174 NLRB 843, enfd . 425 F.2d 730 (C A 6),
Baltimore Lithographers (Alto-Gravure), 160 NLRB 1204, cited with
approval in National Woodwork, supra, fn 41; New York Lithographers
(Alto-Gravure) 160 NLRB 1222, enfd 385 F.2d 551 (C A. 3).
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The clause expressly covers the driving of delivery
trucks as well as the driving of subcontractors' trucks
bringing tools, materials, and personnel to and from
the site of construction. Such driving work has
consistently been held to be outside the proviso's
protection.17 Finally, we also reject Respondent's
argument that the work covered by the clause is, in
any event, "fairly claimable" by the unit employees
since it is similar to, and requires like skills as, the
work which unit employees now and traditionally
perform. As already indicated, the driving work
which the unit employees here perform is considera-
bly more limited than that which they seek to
preserve. The fact that the driving of one truck may
well be similar to, and require like skills as, the
driving of any other truck does not persuade us that
all driving work is therefore "fairly claimable" by a
unit of drivers. We are unable to find that the circuit
court's discussion in Wilson & Co., supra, on which
Respondent relies, ever intended such a result,
particularly where, as here, the clause seeks protec-
tion of work historically performed by employees in
other work units.18 Thus, we can find no more
justification for concluding that the driving work
traditionally done by Rehner's or Remsco's employ-
ees is "fairly claimable" by Walsh's drivers than for
concluding the opposite.
In sum, and for the reasons discussed above, we
find that the object of the high rise clause was not
limited to the labor relations of the contracting
employers vis-a-vis their own employees but was
tactically calculated to achieve union objectives
elsewhere. Accordingly, we find that the clause in the
circumstances here violates Section 8(e) of the Act.
This is not to say, however, that a properly drafted
clause might not be found lawful. Our findings here
are limited to the facts of this case, and we do not
consider whether a contract provision which is
limited to onsite driving might not be appropriate.
2. The 8(b)(3) issue-as to Fortunato
For the reasons fully set forth by him, we agree
with the Trial Examiner's finding that Respondent
violated Section 8(b)(3) of the Act by failing to
execute its 1969-1972 excavating contract with
Fortunato after full agreement on its terms had been
reached by the parties and after Fortunato had
signed the agreement,19 and by subsequently picket-
17 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 294 (Island Dock Lumber, Inc), 145 NLRB 484,
490-491, General Teamsters, Chauffeurs, Warehousemen and Helpers, Local
982 (J K Barker Trucking Co), 181 NLRB 515, 517-518, enfd 450 F 2d
1322 (CAD C ), International Brotherhood of Electrical Workers, Local
1186, AFL-CIO (Pacific Electrical Contractors' Association, et al), 192
NLRB No 43, In 1, Teamsters, Chauffeurs, Warehousemen & Helpers Local
Union No 631 (Reynolds Electrical and Engineering Co, Inc), 154 NLRB 67,
68-69
ing Fortunato to force it to sign Respondent's high
rise agreement. Such picketing at a time when
Fortunato had a current contract and was under no
obligation to bargain about a new agreement also
violated Section 8(d) of the Act.
3. The 8(b)(4) issues-conduct to obtain and
implement the high rise clause
Having found, contrary to the Trial Examiner, that
section 9 of the high rise agreement violates Section
8(e) of the Act, we turn to consideration of whether
Respondent's conduct in seeking to compel its
execution and/or implementation at various jobsites
violated Section 8(b)(4)(i)(ii)(A) and (B) of the Act.
a. As to Fortunato, we agree with the Trial
Examiner's finding that Respondent's picketing of
Fortunato was to force Fortunato to enter into the
high rise agreement. However, as we have found that
section 9 of that agreement is unlawful under Section
8(e) of the Act, we further find, contrary to the Trial
Examiner, that Respondent's picketing to force
Fortunato to agree thereto violated Section
8(b)(4)(i)(ii)(A) of the Act.
In addition, the record shows that the picketing
was not directed solely toward Fortunato but sought
to enmesh neutral employers and employees. Thus,
on March 9, 1970, Respondent's business representa-
tives, Robert Sasso and George Becker, told Fortu-
nato's job superintendent at the Hempstead site,
Donald Pope, that since Fortunato did not have a
contract with Local 282, Respondent would have to
shut the job down. On the following morning,
Fortunato's two drivers picketed at the only entrance
to the jobsite with signs stating "D. Fortunato, Inc.
refuses to sign a new contract. Strike ...." Later
that morning, Fortunato's carpenter foreman, Klisch,
spoke to Local 282 Representative Becker and
Carpenter's Job Steward Rossen. Although an
employee of Fortunato, Rossen acted as steward also
for the carpenters employed by Afco Construction 20
and John S. Parnon Construction Corp. (herein
called Afco and Parnon, respectively) at the Hemp-
stead job. When Klisch asked Rossen if the carpen-
ters, who had already entered the site, would
continue to work, Rossen replied that he had not,
been told otherwise. At this point Becker told Rossen
to call the Carpenters business agent, Hartigan,
because Hartigan "would respect his [Becker's]
18 U S Naval Supt !v Center, supra.
19 Warehousemen 's Union Local 17, International Longshoremen's &
Warehousemen 's Union (Los Angeles By-Products Co.), 171 NLRB 1244,
1250, enfd 451 F 2d 1240 (C A 9)
20 Although Afco Construction was not specifically named in the
complaint , the facts concerning it were fully litigated at the hearing and, in
any event, no exceptions were taken to the Trial Examiner 's findings with
respect thereto
LOCAL 282, TEAMSTERS
picket line." Rossen then called Hartigan and the
latter told him "the carpenters were leaving at 12
o'clock." At noon on March 10 the carpenters
employed by Fortunato, as well as by Parnon and
Afco, walked off the job and, although they
subsequently worked for 2 days, they remained off
until the picketing ended on March 20.
On March 20, Fortunato's principals attended a
meeting at the Hempstead field office trailer with
Messrs. Becker and Sasso. Also present were "a large
number of the business representatives from various
Long Island unions," as well as the president and the
counsel of the Building Trades Employers' Associa-
tion of Long Island,21 an employer association with
which Fortunato is affiliated. After considerable
discussion about how the picketing might be halted,
Local 282 offered to remove the pickets if "the
Building Trades Employers Association of Long
Island would sit down and talk about the hi-rise
contract with the Teamsters." Fortunato discussed
this proposal with the Association's representatives
who were present and they agreed to go along with it.
Immediately thereafter, the pickets at the Hempstead
site were removed. Also in the course of the above
March 20 meeting, Becker complained that Panner
Iron Works, Fortunato's structural steel subcontrac-
tor at the Hempstead job, did not employ "union
truck drivers." When Fortunato contradicted this
assertion, Becker replied that the drivers were not
members of Local 282 and that "the jockeying of
such trucks on the job site is the work of members of
282, not other Teamster unions."
Based on the foregoing, we find that an object of
Respondent's picketing and its threat to shut down
the Hempstead job was to enmesh neutral employees
and their employers in Respondent's primary dispute
with Fortunato. Thus, we find that Respondent,
through Becker, induced and encouraged employees
of Afco and Parnon, with whom Respondent had no
dispute, to refuse to perform services for their
respective employers and by such conduct Respon-
dent also threatened and coerced Afco and Parnon-
with an object in either case of forcing or requiring
Afco and Parnon to cease doing business with
Fortunato. By the foregoing conduct, we find that
Respondent violated Section 8(b)(4)(i)(ii)(B) of the
Act.
b. Remsco-Silver Lake project: As stated, Rem s-
co is the mechanical subcontractor at the Silver
Lake job where Walsh is the general contractor.
Remsco's employees are plumbers and are covered
by a contract with Plumbers Local 371. As has been
its practice, Remsco used a pickup truck to transport
small materials, tools, and personnel to, from, and on
21 This association is not affiliated with BTEA
22 It was agreed that Remsco would reimburse Walsh only if the Board
679
the construction site . Such truck is traditionally
operated by a Remsco foreman or a plumber, a
member of Local 371. As a result of a dispute arising
from Respondent's claim that, under its excavating
contract with Walsh, all driving work at the jobsite
belonged to Local 282, a meeting was held in April
1970 among representatives of Local 282 (DeVito),
Local 371 (Schabert), Remsco (Sampson and Mel-
ville), and Walsh (Mariano). In the course of this
meeting, Remsco and Local 371 took the position
that Remsco's employees had always driven their
employer's truck to, from, and on construction jobs
and that they intended to continue that practice.
Respondent, on the other hand, claimed that its
contract with Walsh gave this work to Local 282
drivers employed by Walsh and that Respondent
would not permit members of any other union to
take it from them. Respondent's representative,
DeVito, also said that if plumbers were permitted to
drive on the jobsite, Walsh would not get any
concrete. Immediately following this meeting, Rems-
co agreed to permit Walsh's trucks and drivers to
perform Remsco's onsite jockeying for which Rems-
co conditionally agreed to - reimburse Walsh.22
It is clear from the foregoing that Respondent's
primary dispute was with Remsco because the latter
did not employ a Local 282 driver on its truck. In
these circumstances, Walsh was in the position of a
neutral secondary employer and Respondent's threat
to ban concrete deliveries to Walsh therefore was
unlawful secondary activity to force Walsh to cease
doing business with Remsco until the latter acceded
to Respondent's demands. Such conduct is clearly
violative of Section 8(b)(4)(ii)(B) of the Act.
Respondent, however, contends that it was entitled
to the work by virtue of a no-subcontracting clause
in its contract with Walsh. We disagree. In the first
place, Remsco was using its truck for purposes other
than mere onsite jockeying; namely, to transport
tools, materials, and personnel to and from the
jobsite. In the second place, a contract provision
which purports to claim work traditionally done by
employees represented in another work unit violates
Section 8(e) of the Act.23 However, even assuming,
arguendo, that Respondent had a primary contract
dispute with Walsh, we would nevertheless find that
Respondent violated Section 8(b)(4)(ii)(B) by coerc-
ing and interfering with Remsco's operations.
c. C. K. Rehner-South Beach project: As
indicated above, Rehner is a prime contractor
performing interior plumbing work at the South
Beach project, where Walsh is the managing contrac-
tor. No contractual arrangement exists between
Walsh and Rehner, and Walsh has no construction
here finds that Walsh's drivers were entitled to perform the work.
23 U S Naval Supply Center, supra.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees at the site. Rehner, like Remsco, employs
plumbers and has a contract with Plumbers Local
371. Consistent with its long practice, Rehner used a
pickup truck, driven by its superintendent or by a
plumber, to transport its men, tools, and small
materials to, from, and on the South Beach job.
When Rehner first brought its truck to the jobsite in
May or June 1970, Respondent's business represent-
ative, DeVito, complained to Rehner's plumbing
foreman, Curto, that Rehner "needed a Teamster to
drive the truck." Although Curto explained that the
truck was used only to transport him and Rehner's
employees to various parts of the jobsite, DeVito
replied that "it didn't make any difference, [Rehner]
needed a Teamster on the truck," and that "all trucks
on the job were to have Teamsters on them." DeVito
explained that this requirement was in "an agreement
book" between contractors and Local 282 to which,
DeVito claimed, Rehner was bound.24 DeVito
further said that unless Rehner "put a teamster on
the truck" Respondent would picket the job. Curto
promised to convey this message to Rehner and, a
few days later, on June 1, Curto told DeVito that
Rehner's response was to "carry on as usual."
DeVito thereupon remarked that he "would stop the
job." A day or two later, Walsh's project manager,
Luster, and DeVito called on Curto. Luster said that
DeVito had a complaint against Curto. DeVito then
insisted that "the agreement called for a Teamster on
every truck on the site." Continuing, DeVito said
that if Curto did not put a teamster on Rehner's
truck, Respondent would have to remove some
teamsters from the job and "would picket the place."
On the following morning, June 2, 1970, DeVito
asked what decision Rehner had reached as to who
would drive Rehner's truck. Curto replied that he
was not authorized to hire a teamster on the truck.
Thereupon, about 7:50 a.m., DeVito set up picket
signs at all entrances to the project. These signs
boldly identified Local 282 and, in fainter handwrit-
ten letters, named Rehner as the employer in the
dispute. However, on one such sign Rehner's name
was so faint as to be virtually invisible. The picketing
continued until June 4 when Respondent removed
the pickets on Rehner's promise to seek withdrawal
of its unfair labor practice charges herein.
Based on the foregoing, we find that Respondent's
threat to picket and picketing at the South Beach job
was to force and require Rehner to give effect to, or
implement, the high rise agreement by hiring a Local
282 driver for its truck. By such conduct, we find
Respondent violated Section 8(b)(4)(i)(ii)(A) of the
Act. Respondent argued that Rehner, by virtue of its
membership in two employer associations affiliated
24 This reference apparently was to Rehner's alleged derivative member-
ship in BTEA. See In 5, supra
with BTEA, was required, under BTEA's constitu-
tion and bylaws, to honor Respondent's high rise
agreement . Having found, however, that the relevant
provision of that agreement violates Section 8(e), we
find that the picketing violated Section 8(b)(4)(A)
regardless of what, if any, obligation Rehner might
otherwise have had, through BTEA, to honor such
agreement.
In addition, we find that Respondent's conduct at
the South Beach job went beyond its primary dispute
with Rehner and had a further object of entangling
Walsh, a neutral employer, in support of such
dispute. Thus, DeVito repeatedly threatened to
picket "the job," and to "stop the job," and to
"picket the place" if Rehner did not hire a Local 282
driver. This language shows that Respondent's object
was not merely to stop Rehner's operation, but to
stop the entire project of which Walsh was the
managing contractor. Further, Respondent directly
appealed to Luster, Walsh's representative at the site,
to intercede in its dispute with Rehner and, in the
presence of Luster, threatened to "picket the place"
if Rehner did not put a teamster on its truck. We
find, in agreement with the Trial Examiner, that the
foregoing statement threatened, coerced, and re-
strained Walsh in violation of Section 8(b)(4)(ii)(B)
of the Act. In so finding, however, we consider
irrelevant the fact that no contractual relationship
existed between Walsh and Rehner. We further find,
contrary to the Trial Examiner, that Respondent's
threat to Walsh also unlawfully threatened, coerced,
and restrained Mental Hygiene Corp., owner of the
South Beach project. We base our finding on the fact
that Walsh, as managing contractor, was represent-
ing the owner for the specific purpose of overseeing
and coordinating the entire construction operation.
In these circumstances, it is immaterial that Respon-
dent's threat may not have been further communicat-
ed to Mental Hygiene Corp.
We also find, in agreement with the Trial Examin-
er, that one of the picket signs used at the South
Beach site did not clearly identify C. K. Rehner as
the primary employer and, therefore, failed to meet
the Moore Dry Dock25 requirements for lawful
common situs picketing. Accordingly, the picketing
to that extent was an inducement to employees of
neutral employers to cease work and a coercive
measure on neutral employers with the proscribed
object previously stated, in violation of Section
8(b)(4)(i) and (ii)(B) of the Act.
The Remedy
Having found that Respondent has engaged in
25 Moore Dry Dock Co, 92 NLRB 547.
LOCAL 282, TEAMSTERS
unfair labor practices in violation of Section 8(e),
8(b)(3), 8(b)(4)(i)(ii)(A) and (B) of the Act, we shall
order that Respondent cease and desist therefrom
and take certain affirmative action designed to
effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Local Union No. 282, affiliated with The Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Entering into, maintaining, enforcing, or giving
effect to section IX of its current High Rise
Agreement 1969-1972 with The Cement League and
its member-employers; the Building Contractors
Employers Association, Inc., and its member-em-
ployers; and with any other employers or employer
associations who have become party to such High
Rise Agreement.
(b) Engaging in, or inducing or encouraging
employees of D. Fortunato, Inc.; C. K. Rehner, Inc.;
Afco Construction; John S. Parnon Construction
Corp.; or any other employer engaged in commerce
or in an industry affecting commerce to engage in, a
strike or refusal in the course of their employment to
use or handle any materials or to perform any
services or threatening, coercing, or restraining D.
Fortunato, Inc.; C. K. Rehner, Inc.; Walsh Con-
struction Co., Inc; or any other person engaged in
commerce or in an industry affecting commerce,
where an object thereof is to force or require D.
Fortunato, Inc.; C. K. Rehner, Inc.; or any other
employer or person to enter into, maintain, enforce,
or give effect to section IX of the High Rise
Agreement 1969-1972 or any other contractual
provisions prohibited by Section 8(e) of the Act.
(c) Inducing or encouraging employees of Afco
Construction, John S. Parnon Construction Corp., or
any other person engaged in commerce or an
industry affecting commerce with whom it has no
primary dispute to engage in a strike or refusal to
perform services, or threatening, restraining, or
coercing Afco Construction, John S. Parnon Con-
struction Corp., or any other person engaged in
commerce or in an industry affecting commerce,
where in either case an object thereof is to force or
require the above-named employers or any other
16 In the event 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
681
persons to cease doing business with D. Fortunato,
Inc.
(d) Refusing to bargain in good faith with D.
Fortunato, Inc., by failing to execute the Excavating
Contract 1969-1972 on which full agreement had
been reached with Fortunato and, thereafter, by
picketing D. Fortunato, Inc., to force it to enter into
its High Rise Agreement 1969-1972.
(e) Threatening, restraining, or coercing Walsh
Construction Co., Inc., or any other person engaged
in commerce or in an industry affecting commerce,
with whom Respondent does not have a dispute,
where an object thereof is to force or require Walsh
or any other such neutral persons to cease doing
business with Remsco Associates, Inc.
(f) Inducing or encouraging any individuals em-
ployed by Colonial Concrete, Post Construction,
Queens Construction, Victor Plumbing, or any other
person engaged in commerce or an industry affecting
commerce with whom it has no primary dispute to
engage in a strike or refusal to perform services, or
threatening, restraining, or coercing Walsh Construc-
tion Co., Inc., Mental Hygiene Corp., or any other
person engaged in commerce or in an industry
affecting commerce, where in either case an object
thereof is to force or require the above-named
employers or any other persons to cease doing
business with C. K. Rehner, Inc.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Immediately execute the Excavating Contract
1969-1972 on which agreement had been reached
with D. Fortunato, Inc., and forthwith forward to D.
Fortunato, Inc., a duly executed copy or copies of
said executed agreement.
(b) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix." 26
Copies of said notice, on forms provided by the
Regional Director for Region 29, after being duly
signed by a representative of Respondent Local 282,
shall be posted by said Union immediately upon
receipt thereof, and be maintained 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.
(c) Furnish said Regional Director with signed
copies of the aforesaid notice for posting by D.
Fortunato, Inc.; Remsco Associates, Inc.; C. K.
Rehner, Inc.; Walsh Construction Co., Inc.; The
Cement League and its member-employers; the
Building Contractors Employers Association, Inc.,
Pursuant to a Judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board."
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its member-employers; and The Building Trades
Employers' Association of the City of New York and
its member associations; or such of said employers as
may be willing, at all places where notices to their
respective employees or members are customarily
posted.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into, maintain, enforce, or
give effect to section IX of our current High Rise
Agreement 1969-1972 with The Cement League
and its member-employers; the Building Contrac-
tors Employers Association, Inc., and its member-
employers; and with any other employers or
employer associations.
WE WILL NOT engage in, or induce or encour-
age employees of D. Fortunato, Inc.; C. K.
Rehner, Inc.; Afco Construction; John S. Parnon
Construction Corp.; or any other employer
engaged in commerce or in an industry affecting
commerce to engage in, a strike or refusal in the
course of their employment to use or handle any
materials or to perform any services or threaten,
coerce, or restrain D. Fortunato, Inc.; C. K.
Rehner, Inc.; Walsh Construction Co., Inc.; Afco
Construction; John S. Parnon Construction
Corp.; or any other person engaged in commerce
or in an industry affecting commerce, where an
object thereof is to force or require D. Fortunato,
Inc.; C. K. Rehner, Inc.; or any other employer or
person to enter into, maintain, enforce, or give
effect to section IX of our High Rise Agreement
1969-1972 or any other contractual provision
prohibited by Section 8(e) of the Act.
WE WILL NOT induce or encourage employees
of Afco Construction, John S. Parnon Construc-
tion Corp., or any other person engaged in
commerce or an industry affecting commerce
with whom we have no primary dispute to engage
in a strike or refusal to perform services or
threaten, restrain, or coerce Afco Construction,
John S. Parnon Construction Corp., or any other
person engaged in commerce or in an industry
affecting commerce where in either case an object
thereof is to force or require the above-named
employers or any other persons to cease doing
business with D. Fortunato, Inc.
WE WILL NOT refuse to bargain in good, faith
with D. Fortunato, Inc., by failing to execute our
Excavating Contract 1969-1972 after full agree-
ment was reached and, thereafter, by picketing D.
Fortunato, Inc., to require it to subscribe to our
High Rise Agreement 1969-1972.
WE WILL NOT threaten, restrain, or coerce
Walsh Construction Co., Inc., or any other person
engaged in commerce or in an industry affecting
commerce with whom we have no dispute where
an object thereof is to force or require Walsh
Construction Co., Inc., or any other such person
to cease doing business with Remsco Associates,
WE WILL NOT induce or encourage employees
of Colonial Concrete, Post Construction, Queens
Construction, Victor Plumbing, or any other
person engaged in commerce or in an industry
affecting commerce with whom we have no
primary dispute to engage in a strike or refusal to
perform services or threaten, restrain, or coerce
Walsh Construction Co., Inc., Mental Hygiene
Corp., or any other person engaged in commerce
or in an industry affecting commerce with an
object of forcing or requiring the above-named
employers or any other persons to cease doing
business with C. K. Rehner, Inc.
WE WILL bargain in good faith with D.
Fortunato, Inc., by immediately executing our
Excavating Contract 1969-1972 on which agree-
ment with Fortunato had been reached, and
forthwith forward to Fortunato a duly executed
copy or copies of said executed agreement.
Dated By
LOCAL UNION No. 282,
affiliated with THE
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
(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 compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor,
Brooklyn, New York 11201, Telephone
212-596-3535.
LOCAL 282, TEAMSTERS
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: These are seven
unfair labor practice cases litigated pursuant to Section
10(b) of the National Labor Relations Act, herein called
the Act. They were consolidated for the purpose of trial.
The charges in Cases 29-CC-230, 29-CC-231,
29-CE-10, and 29-CB-738 were filed on March 18, 1970,
by D. Fortunato, Inc. That in 29-CE-10 was amended on
December 1, 1970. These four charges name as Respon-
dent Local Union No. 282, affiliated with The Internation-
al Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America. They also name as parties to the
contract The Cement League and its member-employers,
and Building Contractors Employers Association, Inc., and
its member-employers; and as parties in interest The
Building Trades Employer's Association of the city of New
York and its member associations.
C. K. Rehner, Inc., filed the charges in Cases
29-CC-243 and 29-CE-13 on June 3, 1970, naming said
Local Union No. 282 as Respondent. On June 19, 1970,
Remsco Associates, Inc., filed the charge in Case
29-CC-248, naming Local Union No. 282 as Respondent.
On January 6, 1971, the General Counsel of the National
Labor Relations Board, herein called the Board, through
the Regional Director for Region 29 (Brooklyn, New
York), consolidated said cases and issued a consolidated
complaint based on all the charges and the amended
charge . In essence said complaint alleges that Respondent
has violated Sections 8(b)(3), 4(i)(A) and (B), 4(ii)(A) and
(B), and 8 (e), and that such conduct affects commerce
within the meaning of Section 2(6) and (7) of the Act.
Respondent has answered admitting some facts but
denying that it committed any unfair labor practices.
Pursuant to due notice , the consolidated case came on to
be heard, and was tried before me, at Brooklyn, New York,
on January 27, 28, 29, and February 1, 2, 3, 4, 22, 23, 24,
and 25, 1971. All parties had full opportunity to introduce
evidence , examine and cross-examine witnesses , file briefs,
and offer oral argument. Respondent argued briefly orally
at the close of the hearings . Its motions to dismiss,
submitted when the General Counsel rested , and again
when the case closed , were denied . Briefs were received on
August 16, 1971, from the General Counsel and Respon-
dent.
This consolidated case presents the following issues:
1. Whether Respondent, Local Union No. 282, refused
to bargain in good faith with D. Fortunato, Inc.
2. Whether said Respondent engaged in a strike, or
induced or encouraged employees to refuse to perform
services, where an object of such conduct was
(a) To force or require any employer to enter into an
agreement prohibited by Section 8(e) of the Act; or
(b) To force or require any person to cease doing
business with any other person ; or both.
3. Whether said Respondent threatened, coerced, or
restrained any person where an object of such conduct is
that described in paragraph 2a, or 2b, supra, or both.
4. Whether the contract involved contravenes Section
8(e) of the Act.
683
Upon the entire record in this case , and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. AS TO JURISDICTION
D. Fortunato, Inc., a New York corporation, is
engaged in New York in the business of general construc-
tion contracting , including excavating work . Its principal
office and place of business is situated in Floral Park, New
York.
C. K. Rehner, Inc., a New York corporation, is
engaged in New York in the business of institutional
plumbing contracting and related services . Its principal
office and place of business is located at Elmhurst, New
York.
Remsco Associates , Inc., a New Jersey corporation with
its principal place of business at Old Bridge , New Jersey, is
engaged in the States of New Jersey and New York in the
business of commercial and institutional mechanical
plumbing contracting and related services . During the year
preceding the issuance of the complaint Remsco Associ-
ates, Inc., C. K. Rehner , Inc., and D. Fortunato , Inc., each
purchased supplies and materials valued in excess of
$50,000 , of which supplies valued in excess of $50,000 were
shipped directly to each in New York by firms located
outside New York.
I find that Remsco Associates , Inc., C . K. Rehner, Inc.,
and D . Fortunato , Inc., are employers within the meaning
of Section 2(2), and are engaged in commerce within the
meaning of 2(6) and (7), of the Act. Further, I find that the
following are also employers engaged in commerce: John
S. Parnon Construction Corp., Sol Picone & Sons Indus-
tries, Inc., Willner Heating Co ., Inc., K & B Sheet Metal
Inc., Walsh Construction Co., Inc., The Cement League
and its member-employers, The Building Trades Employ-
ers' Association of the City of New York and its member
associations , and Building Contractors Employers Associa-
tion , Inc., and its employer-members . In addition I find
that the following are persons engaged in commerce:
Health and Mental Hygiene Facilities Improvement
Corporation of the State of New York, Board of Water
Supply of the City of New York, and Town of Hempstead,
New York.
Additionally , I find that it will effectuate the purposes of
the Act to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 282, affiliated with the International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, Respondent in this case , herein
called Local 282, is a labor organization within the
meaning of Section 2(5) of the Act.
III. GENERAL COUNSEL'S EVIDENCE REGARDING THE
UNFAIR LABOR PRACTICES
A. Events concerning D. Fortunato, Inc.
This company, hereinafter referred to as Fortunato, is a
general contractor performing general municipal work. It
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employs two truckdrivers , both members of Local 282. It is
the general contractor, also known as a prime contractor,
on the construction of the Hempstead High School, a
senior high school of the town of Hempstead , New York.
At the jobsite thereof , which is located at the intersection
of Peninsula Boulevard and President Street in said town,
Fortunato is performing the excavation site work , concrete
work, and carpentry . Others having prime contracts with
said town to perform work at said jobsite are Wilner
Heating, the heating and ventilating contractor ; Valden
Plumbing , the plumbing contractor ; and Herrick Electric,
the electrical contractor.
On March 20 , 1970, Fortunato 's vice president , Bernard
Fortunato , visited said jobsite . Upon arriving there
Bernard observed two of Fortunato's employees, both
dump truck drivers , picketing at the gate. Thereupon
Bernard "had a meeting" with Robert Sasso and George
Becker , both business representatives of Local 282. In
addition , representatives of Fortunato , the Building Trades
Employers' Association , the Building Trades Employers'
Association of Long Island , the Bricklayers Union, the
Carpenters Union , the Plumbers Union, the Laborers
Union , and "a number of other unions ," also were present
at this meeting . In addition , Sasso said that the pickets
would be withdrawn if the high rise agreement was signed
by Fortunato.
Sasso asked the Fortunato representatives to sign a high
rise contract . The latter replied that they had no reason to
sign such a contract since they had already signed and had
been signing for the past 10 or 20 years , an excavating
contract with Local 282; and that the last contract ended
in 1972 . But Sasso replied that "they had no record of the
excavating contract" and requested Fortunato either to
"avoid the Excavating Contract ," if one existed , or sign the
high rise contract in addition to the excavating contract
and thus "have dual contracts ." But Fortunato stated that
it was abiding by the terms of the excavating contract and
was paying wages and fringe benefits called for by its
terms.
At this point Sasso presented Fortunato for the latter to
sign a document entitled "High Rise Contract 1969-1972."
See General Counsel 's Exhibit 13. Nevertheless Fortunato
refused to execute the contract so presented to it and
further claimed that it was "affording welfare and pension
funds to [Local 282 ] under the terms and conditions of the
Excavating Contract." In addition , Fortunato complained
that some crafts on the j ob were not performing work there
because they were not crossing the picket line.
Soon Mr . Alessi , the Bricklayers delegate , suggested to
Fortunato that Local 282 would consider removing the
pickets if Fortunato would meet with the Building Trades
Employers ' Association of Long Island to discuss the high
rise contract with Local 282. As soon as Fortunato
accepted this proposal the pickets were removed and "the
job went back to work."
At the foregoing meeting Fortunato also asserted that its
drivers drove its trucks on the jobsite and that its
subcontractors or suppliers moved the trucks of the latter
on thejobsite . However , Becker claimed that driving trucks
on the job belonged to Local 282 and pointed out that
Panner Iron Works, the structural steel subcontractor, did
not employ union drivers on its trucks . When Fortunato
denied this , claiming that Panner employed union drivers,
Becker remarked that they were not members of Local 282.
Since its incorporation several years ago Fortunato's
suppliers or subcontractors have delivered materials and
supplies to it at jobsites in trucks of such suppliers or
contractors . Most of that time it has executed an
Excavating Contract with Local 282. However, these trucks
of suppliers and subcontractors have been operated by the
employees thereof, but many of such suppliers or subcon-
tractors had employees who were not members of Local
282. Such subcontractors or suppliers moved their own
trucks with their awn employees at the jobsites.
Fortunato for many years has signed an excavating
contract with Local 282 for its truckdrivers . It has signed
about six . According to Bernard Fortunato the last
excavating contract which Fortunato had with Local 282
expired at the end of June 1969 . Commencing July 1, 1969,
and continuously thereafter , Fortunato made payments to
the pension and welfare trusts of Local 282 and to the
dump truck owners industry fund on a monthly basis in the
manner and amounts provided by the 1969-1972 excavat-
ing agreement . Said monthly checks were received by said
pension and welfare trusts and said industry fund and were
deposited by the same . Such payments were remitted with
forms provided by Local 282 for such payments. See
General Counsel 's Exhibits 15A and 15B.
In August 1969, Becker of Local 282 asked Fortunato to
sign the Metropolitan Builders' Association contract, but
the latter refused . In substance it was the same as the high
rise contract . Further, Fortunato stated it would sign only
the "usual contract, the excavating contract ." Becker
replied he would let Fortunato know when the excavating
contract was "printed up."
Later in 1969 Louis Fortunato , president of Fortunato,
spoke to Argento and Huggins , business representatives of
Local 282 . Louis on this occasion asked them to send him
"the excavating contract and I'll sign it." However , Becker
of Local 282 about a week later asked Louis to sign an
excavating contract for the years 1969-1972 in triplicate,
and Louis did so . Louis then handed the three copies to
Becker. The latter stated he would have all three signed
and send a signed copy to Louis . But such a signed copy
was never sent to Louis and at no time has Local 282
sought to terminate said contract . However , in January
1970, Becker left a high rise contract at the office of Louis
to be signed by Fortunato . See General Counsel 's Exhibit
9A for the form thereof, although said exhibit is not the
copy left by Becker; and Respondent 's Exhibit 1, which
Fortunato claims is a form copy of the contract signed by
Fortunato.
As mentioned above , Fortunato at the March 20, 1970,
meeting promised Sasso to consider the proposals of Local
282 for a high rise contract . Immediately thereafter the
pickets were withdrawn and Fortunato agreed to meet with
the Building Trades Employers ' Association of Long
Island to discuss the demands of Local 282 for a high rise
contract.
On March 9 , 1970, Sasso and Becker , business represent-
atives of Local 282, spoke to Donald Pope , Fortunato's
superintendent on the Hempstead High School job. Quish,
LOCAL 282, TEAMSTERS
the carpenter foreman, and others, were also present.
Becker said he would "shut down" Fortunato's "job" there
because Fortunato did not have a contract with Local 282.
Pope advised Becker to get in touch with Fortunato's
"office or . . . lawyers." The next day two pickets, being
Fortunato's two truckdrivers, appeared on President Street
at the only entrance to the schooljob.
It was stipulated (a) that such picketing continued at the
Hempstead jobsite daily from 7:30 a.m. to 3:30 p.m. until
March 20, 1970, except that it was discontinued on
Saturdays and Sundays; and (b) that the picket signs
carved the legend "D. Fortunato, Inc., refuses to sign a
new contract. Strike. Teamsters and Chauffeurs Local 282,
International Brotherhood of Teamsters." See General
Counsel's Exhibit 14.
As a result of said picketing, on March 10 the
electricians, about 12 in number, at first refused to work.
However, at 9:30 a.m. they did commence working. These
electricians are employed by Herrick Electric. Further, at
noon of the same day the carpenters "went out in
sympathy." Some of them were employed by Fortunato,
while others were employees of Afco Construction and
Pamon Construction Company. Although the carpenters
returned for 2 days they again left thejob and returned
after March 20.
According to Pope, Fortunato has two dump trucks;
these are driven by the two picketing employees of
Fortunato. Said trucks are used to move materials, such as
carpenter forms and pumps, and fill from one location on
the jobsite to another. On rare occasions these trucks also
carried "something small" from the supplier to the jobsite.
They spend about half their time transporting materials on
or at the jobsite and half in performing excavating work.
About 90 percent of their time is spent at the j obsite and 10
percent "off the job." He further testified that deliveries of
materials and supplies to the jobsite are effected by the
suppliers themselves, and then such are dropped off at
points on the jobsite where they are needed. At no time did
Fortunato's truckdrivers operate at any jobsite the truck of
any supplier or subcontractor; rather this was done by the
employee of the supplier.
During the picketing on March 10 Pope also observed
truckdrivers of suppliers or material men speaking to the
pickets. Following such conversations said truckdrivers left
the jobsite without completing their deliveries. However,
on a day shortly after March 10 the truckdriver of Cambria
Sheet Metal, a supplier, did make a delivery to the jobsite
after he spoke to the pickets.
Fortunato's carpenter foreman is Heinz Klisch on the
Hempstead job. When Klisch reported for work on March
10, 1970, he found a picket line there. About 8 a.m. that
morning Klisch spoke to Becker, a business representative
of Local 282, and Rossen, an employee of Fortunato and
the carpenter steward on the job. As such steward Rossen
acted for the carpenters of Fortunato, Parnon, and Afco
on said job.
When Klisch asked Rossen if the carpenters would
continue to work that morning, Rossen replied that he
"didn't know anything otherwise." At this point Becker of
Local 282, who was present, told Rossen to call the
Carpenters Union business agent, one Hartigan, because
685
Hartigan "would respect his [Becker 's] picket line ." Rossen
did call Hartigan. The latter told him "the carpenters were
leaving at 12 o'clock." At noon all the carpenters did leave
the job. Although said carpenters returned later for 2 days
they again stayed away from work until the picketing was
discontinued on March 20. When the carpenters did not
cross the picket line on the latter occasion, i.e., after
working 2 days, Rossen said it was his own decision not to
cross it.
One of the suppliers making deliveries of cement blocks
to John S. Parnon Corporation at the Hempstead High
School job is Sal Picone Industries. Parnon has contracted
with Fortunato to perform cement services there. In March
1970, Picone's driver, Timothy Buckley, a member of Local
282, was instructed to deliver a load of cement blocks to
John Pamon, a contractor on that job. When Buckley
arrived there some men told him that "the job was on
strike" and asked him if he knew this. When he replied in
the negative they asked him if he was going to go across the
picket line. Replying, "Definitely not," Buckley telephoned
his dispatcher for instructions. The latter directed him to
bring the load back to Picone's yard. Some of the men who
spoke to Buckley wore picket signs displaying the message
D. Fortunato , Inc., refuses to sign a new contract . Strike.
Teamsters and Chauffeurs Local 282." See General
Counsel's Exhibit 14.
John Erbis is a truckdnver for K & B Sheet Metal, but
belongs to no union. None of the truckdrivers of K & B is a
member of a labor organization. In March 1970, he was
directed to make a delivery of air ducts to the Hempstead
High School job. When he arrived there he observed two
persons picketing with signs heretofore described as
General Counsel's Exhibit 14. When one of the pickets told
him that the picket "was going to call the union delegate,"
Erbis asked if he could enter the jobsite. The picket
answered that he could not stop Erbis. Thereupon Erbis
completed the delivery.
B. Events Concerning Remsco Associates, Inc.
At all times material herein the Board of Water Supply
of New York City awarded Walsh Construction Company,
as general contractor, a contract to construct Silver Lake
Park Water Storage Tanks in Staten Island, New York. On
or about February 2, 1968, Walsh awarded a subcontract
to Remsco to install the mechanical plumbing and piping
systems and related services. See General Counsel's
Exhibit 17. Remsco first started to work there as a
subcontractor late in 1969. Materials delivered to Remsco
at this jobsite included large clad steel pipe, asbestos,
cement pipe , sluice skids, sluice gate operators, large
diameter valves, dehumidifiers, crane, and hoist. Although
these were delivered by trucks, none of said trucks was
driven by a member of Local 282. Said materials were
delivered by said trucks directly to the approximate area
where they were to be used on the jobsite, and they were
not thereafter put on a truck for further transportation at
the project.
Remsco is engaged in the business of mechanical
contracting. Nicholas Lazarchick is its field superintend-
ent. One of the jobs on which Remsco was working is
known as the Silver Lake Park Water Storage Tanks. At
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this location Remsco, as subcontractor for Walsh Con-
struction Company,' was installing 24-inch soil pipe and
floor drains with its plumbers. In April, 1970, as Lazar-
chick parked Remsco's pickup truck at its toolshed, the job
steward of Local 282 accosted him. The steward told
Lazarchick that the former "thought that Remsco prom-
ised to keep the truck off the job." Lazarchick replied that
he was using the truck to commute and was not hauling
anything in it.
Since about 1957, Remsco's past practice in the metro-
politan New York City area respecting movement of tools
and materials on jobsites may be described as follows:
(a) Large materials were brought on the jobsite almost
always by common carver trucks. These were usually
manned by drivers who belonged to a Teamsters union.
This procedure was not affected by the oral disagreement
of April, 1970, hereinafter described, and it continued
thereafter.
(b) Shipments of small materials and tools used on a job,
as well as personnel working at said jobsites, were
transported to, from, and in and about jobsites in Remsco
trucks operated by employees of Remsco who belonged to
a plumbers union. At no time in the past were such trucks
operated by members of Local 282.
After April 1970, Remsco brought small tools, materials,
and supplies to the Silver Lake job in the following
manner : Lazarchick transported them up to, but not into,
the project in Remsco's pickup truck, whence Remsco's
employees, who are plumbers, manually carried, by hand
or a manually operated wheelbarrow, such supplies and
tools to their destination on the site . Prior to this, that is
from February 1969, Remsco's truck delivered said tools,
materials, and supplies to the point or points on the j obsite
where they were needed. The change in procedure after
April 1970, resulted from a disagreement, in April 1970, by
representatives of Remsco, Local 282, and Local 371 of the
Plumbers Union (Remsco's employees are plumbers) over
using a Walsh truck to haul Remsco' s tools, materials, and
personnel on and around the jobsite. (Walsh Construction
Company is a contractor, also performing work at the
Silver Lakes jobsites, who has a collective-bargaining
contract with Local 282 covering its truckdrivers.)
The foregoing disagreement arose between Plumbers
Local 371 and Local 282 as to who should drive trucks on
the jobsite. Local 371 claimed that the plumbers had
always driven trucks of their employer to, from, and on
construction jobsites, and stated they would continue to do
so. On the other hand, Local 282 insisted that its contract
with Walsh gave this work to Teamsters employees of
Walsh and that Local 282 would not allow members of any
other union to perform it. Further, Local 282 said that if
plumbers continued to do this work Walsh was "not going
to get any concrete on the job." The foregoing was a
compromise worked out pending the decision in the instant
case.
Remsco is a party to a collective-bargaining contract
between Richmond County Plumbing Contractors' Associ-
ation and Local Union No. 371 of the Plumbers. See
General Counsel's Exhibits 16 and 19.
Early in 1970, Tony Pisicanti, an employee of Walsh
Construction and the job steward of Local 282 on the
Silver Lakes project, spoke to James Melville, Remsco's
project engineer on said job. In this conversation Pisicanti
told Melville that Remsco's plumbers were not allowed to
drive Remsco's pickup truck on the jobsite unless it was
empty, and that if the truck were operated while bringing
materials on to or around the site it had to be driven by a
Teamster.
C. Events Concerning C. K. Rehner, Inc.
Renner is engaged in the business of plumbing and
heating on institutional type buildings, school buildings,
and residential apartment houses. It employs laborers and
plumbers; the latter are members of Local 371 of the
Plumbers Union. "In order to do work in Staten Island"
Rehner must abide by a contract "between the [Plumbers]
local union and the contractor involved." See General
Counsel's Exhibit 16.
At all times material the Health and Mental Hygiene
Facilities Improvement Corporation of the State of New
York, herein called Mental Hygiene Corp., a public benefit
corporation, has retained Walsh Construction Company as
construction manager and representative respecting the
former's construction and modernization of state and
community mental hygiene facilities, including the con-
struction of South Beach Psychiatric Center in Staten
Island, New York. As such Walsh "manages the various
contractors of the various trades" which are building said
center. On or about March 17, 1970, Mental Hygiene Corp.
awarded a contract to Renner to install all interior
plumbing systems at South Beach Psychiatric Center. No
contract exists between Walsh and Rehner. Rehner
commenced working at South Beach about May 1, 1970. It
has but one vehicle, a pickup truck, on the job. It
transports men and their equipment, tools, and materials to
points on the job. Said truck is operated by a supervisor or,
on occasion, by one of the employees belonging to Local
371 of the plumbers.
In the past 40 years Rehner has assigned pickup trucks to
various jobsites. At all times these trucks have been
operated by its plumbers. At no time has Rehner employed
drivers who were members of Local 282. Rehner's suppliers
deliver materials to it atjobsites in trucks of such suppliers
driven by employees of the latter.
Although Walsh manages the construction at South
Beach it neither performs construction nor has any
Teamsters at the site. In faci many contractors performing
work there are prime contractors who have a contract with
Mental Hygiene Corp.
Walsh's project manager at said South Beach job is
Wilmer Luster. In June 1970, DeVito, a representative of
Local 282, told Luster that DeVito had a disagreement
with Rehner "for not meeting certain agreements with"
DeVito and that, therefore, DeVito should remove some
Teamsters from the job. Luster told him to get in touch
with Rehner's superintendent about it as Walsh "was not a
general contractor" on the job.
During June 1970 picketing of the South Beach job
occurred for a few days. This occurred at the main
1 See G C. Exh. 17 for the subcontract.
LOCAL 282, TEAMSTERS
entrance and the second entrance, the only two means of
access to the site. DeVito was standing by a car in the
vicinity of one of the entrances. Said car displayed a picket
sign reading "Strike, Teamsters and Chauffeurs, Local 282,
International Brotherhood of Teamsters. Against C. K.
Rehner, Inc." See General Counsel's Exhibits 18A and
18B. About June 4, 1970, a Mr. Friedman telephoned
Rehner that the pickets would be withdrawn if it withdrew
the charges. Rehner then sought to withdraw the charges
and the picketing was thereupon discontinued. However,
Rehner's application to withdraw the charges was rejected
by the Board's Regional Director except for that in Case
29-CC-242.
When Rehner first brought its own truck to the South
Beach job in May or June 1970, DeVito of Local 282 spoke
about it to Anthony Curto, Rehner's plumbing foreman
there. In this conversation DeVito stated that Rehner
"needed a Teamster to drive the truck." Although Curto
explained that it was used to transport him and Rehner's
employees to various parts on the jobsite, DeVito replied
that "it didn't make any difference, [Curto] needed a
Teamster on the truck," and that "all trucks on the job
were to have Teamsters on them." Thereupon Curto
promised to convey this message to his office. Continuing,
DeVito insisted that this arrangement was in "an agree-
ment book" between contractors and Local 282. DeVito
claimed Rehner was bound by this agreement and that
Rehner had to "put a teamster on the truck" or DeVito
"would picket the job."
A few days later Curto told DeVito that he had informed
Rehner of DeVito's claim to the work of driving the trucks
on the job and that Rehner had instructed Curto to "carry
on as usual." This caused DeVito to remark that he "would
stop the job." A day or two thereafter Wilmer Luster,
Walsh's project manager on the job, and DeVito called on
Curto. Luster said that DeVito had a complaint against
Curto. Then DeVito insisted that "the agreement called for
a Teamster on every truck on the site." Continuing, DeVito
said that if Curto did not put a Teamster on Rehner's truck
DeVito "would picket the place."
The next day, June 2, 1970, DeVito asked Curto what
decision had been made respecting who should drive
Rehner's truck on the jobsite. Curto replied he was not
authorized to employ a member of Teamsters on the truck.
Thereupon, about 7:50 a.m. DeVito set up picket signs at
both the main entrance and the only other entrance to the
project. See General Counsel's Exhibits 18A and 18B for
the text of such signs. The pickets remained until quitting
time, 3:30 p.m., and the day after that, remaining until
noon.
On the first day of picketing some trucks of Colonial
Concrete, which approached to make deliveries to Queens
Construction at the jobsite, turned away without entering
the jobsite after speaking to DeVito at the scene of the
picketing. The truckdriver of another supplier, who arrived
to deliver tile to Post Construction on the jobsite, also
refused to cross the picket line after talking to a picket and
left without making the delivery. Other trucks also refused
to cross the picket line that day after the drivers thereof
spoke to the pickets. Some, including that of Victor
Plumbing, were delivering supplies to Rehner at the
687
jobsite; others were delivering to other contractors working
on the job.
On the second day of the picketing "the telephone
company man," who had arrived at the site to install
telephone service for Rehner, refused to enter the site when
he saw the picketing, giving as a reason "we didn't want to
get involved." He left without installing the telephone.
On the third and last day of the picketing a truckdriver
making "a big delivery from Pennsylvania" to Rehner at
the jobsite refused to cross the picket line after speaking to
"some individuals ... on the field."
D. Other Incidents Pertinent to the Issues Herein
Alexander Wolf & Son is engaged at New York City in
the business of performing alterations in office buildings in
that part of the city known as Manhattan. It is a member
of Building Contractors Employers Association, Inc. It has
no trucks and has never employed any members of Local
282. When Wolf purchases materials and supplies used in
connection with its functions the same are delivered by the
suppliers. Nevertheless Wolf does subcontract some of its
work. In such instances the subcontractors often use trucks
in the course of performing such work. Such trucks are not
the property of Wolf.
Dorff Construction Company, a general contractor and
a member of the same association as Wolf, testified that
Dorff operates in substantially the same manner as Wolf.
However, Dorff has one truck, which is operated by its
employee. The employee is not a member of Local 282.
The truck is used to move equipment from Dorff's shop to
a building and from a building back to the shop.
A. J. Courtmel is engaged at New York City in the
business of building contracting in the New York Metro-
politan area. It is a member of Building Contractors
Employers Association, Inc. It has no trucks, employs no
truckdrivers, and does not employ any members of Local
282. Supplies and materials which Courtmel purchases in
furtherance of its work are delivered to it at jobsites by
trucks of the suppliers or of subcontractors to whom it has
subcontracted work, but Courtmel's employees do not
handle or operate such trucks.
John Gallin & Son, a member of the Building Contrac-
tors Employers Association, Inc., and a general building
contractor, has two trucks. These are operated by its
employees. One is used strictly for maintenance work and
the other to transport its superintendents to and from jobs.
None of its employees belong to Local 282. Otherwise
Gallin operates in substantially the same manner as
Courtmel, as described above.
Evidence that other contractors operated in a manner
similar to A. J. Courtmel, supra, i.e., without trucks, was
adduced by the General Counsel at the hearing. These are
Gotham Construction, a member of Building Contractors
Employers Association, Inc., a general contractor with a
principal place of business in New York City; George F.
Driscoll Company, a member of Mason Builders Associa-
tion, which in turn is a member of Building Trades
Employers' Association of the city of New York.
The General Counsel also adduced evidence that still
other contractors operated in substantially the same
manner as Dorff Construction Company, supra, that is
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with one or more trucks operated by their own employees.
These are: Central Cement Finishing Company, a member
of the Cement League and the Building Trades Employers'
Association; and Barnaby Concrete Corporation, a mem-
ber of the Cement League and the Building Trades
Employers' Association. However, Barnaby's truckdrivers
are members of Local 282.
Costello Construction Company, a general contractor
doing business in New York City's five boroughs and in
Nassau, Suffolk, and Westchester counties , New York, is a
member of the Cement League, which in turn is a member
of Building Trades Employers' Association of the city of
New York. It has three trucks, all driven by employees who
are members of Local 382. However, when Costello
purchases supplies or materials to be delivered to a j obsite
these are delivered to such site by the seller . And at no time
do Costello's truckdrivers operate the trucks of such sellers
when they make deliveries at such jobsites.
Further, Costello does subcontract out some of its work.
At no time do Costello's truckdnvers operate the trucks of
such contractors at jobsites where Costello is performing
work. An example of this is that Costello is now
performing construction work for Long Island Lighting
Company at Northport, New York, but is not using any
trucks at said jobsite. Nevertheless Costello's subcontrac-
tors on said job do use trucks.
In April 1970, Benjamin Schabert, business manager of
Local 371 of the Plumbers Union, met with DeVito of
Local 282 at the Silver Lakes job. Walsh Construction's
superintendent, Remsco's superintendent, and one Samp-
son were also present. At this meeting DeVito complained
that Schabert's plumbers were doing the work of Local 282
members, i.e., driving trucks. Schabert replied that he had
been doing such work during the 25 years he was business
manager and for 25 years before that.
Describing such work, Schabert said that he drove a
truck on the jobsite picking up material at one point and
delivering it to one or more other points at such sites. To
this DeVito replied that if Schabert's plumbers persisted in
driving such trucks DeVito would have to do something
about it, and that he, DeVito, would stop deliveries and
"wouldn't let any other trucks come in" to make deliveries.
At this meeting DeVito in addition argued that Walsh's
contract with Local 282 "covered all trucking on the
jobsite" and that "Walsh was violating the Local 282
contract." When the meeting ended the parties had not
resolved this issue.
Local 371 has a contract with an association, one of
whose members is C. K. Rehner, a contractor doing some
work at the South Beach Psychiatric job in Staten Island.
This contract covers plumber employees and is in evidence
as General Counsel's Exhibit 16. Local 371 also has a
contract with Remsco Associates covering the latter's
plumbers. See General Counsel's Exhibit 19.
About June 1, 1970, DeVito again complained to
Schabert that Rehner had trucks at the South Beach
mental hospital job, and added that he, DeVito, wanted
Rehner to sign a contract with Local 282, and that if
Refiner did not sign DeVito would have to picket. DeVito
added that he told this to Rehner. Replying, Schabert
insisted that he would not take plumbers off Rehner's truck
regardless of what action DeVito took.
Further testifying, Schabert claimed that in the course of
his 25 years with the Plumbers Union he observed that it
was "the practice in the industry" that "members of Local
371, in respect to driving trucks, has been driving them for
my 25 years administration and 25 years before me." He
also asserted that members of Local 371 drove such trucks
on jobsites to cart men and materials at, on, and about
such sites.
John Nolte, Remsco's working foreman at the Silver
Lakes and a member of Local 371 of the Plumbers Union,
drove Remsco's truck carrying tools and materials to this
site 1 day in early May, 1970. When he arrived he began to
remove the tools. At this point Nolte was warned by the
job steward for Local 282, an employee of Walsh
Construction, that Nolte had no right to drive a truck on
the jobsite. The steward claimed that a plumber should not
be driving the truck and that a Teamster should be
operating it.
Nolte further testified that he always drove a truck "on
all plumbing jobs" when he had occasion to perform
plumbing work at construction sites. In fact only plumbers
drove Remsco trucks while carting materials, tools, and
men at construction sites; at no time did members of Local
282 perform such driving for Remsco.
Lasker-Goldman Corporation, a member of Building
Contractors Employers Association, is a general contractor
in New York City and Long Island. It does not now own
any trucks, although it operated one for about 2 years in
the past. That truck was used to cart materials from one
job to another and was operated by one of its employees
who "must have been" a member of the Teamsters.
However materials and supplies purchased by Lasker-
Goldman are delivered to it at jobsites by trucks of the
suppliers and driven by employees of said suppliers. None
of these trucks is operated by Lasker-Goldman's employ-
ees. Lasker-Goldman subcontracts some of its work.
Trucks used by such subcontractors to transport materials
and supplies to jobsites are operated by their employees
and not by employees of Lasker-Goldman.
Another general contractor in the New York City
Metropolitan area which belongs to the Building Contrac-
tors Employers Association is All Building Construction
Corporation. It has no trucks of its own. Materials and
supplies are delivered to it in the same manner as Lasker-
Goldman, supra. Similarly, trucks delivering materials and
supplies for subcontractors of All are owned and operated
as in the case of Lasker-Goldman. -
Hennegan Construction Company, which is engaged in
altering buildings in the New York City area, belongs to
both The Building Trades Employers' Association and
Building Contractors Employers Association. It operates
one truck to cart debris and "demolition" away from
jobsites and to deliver materials to such sites. Nevertheless
supplies and materials which Hennegan purchases in
connection with its work are delivered to it at sites by the
suppliers in the trucks of the latter. However, "small
orders" (such as "a couple bags of cement") and orders
requiring immediate transportation are picked up from the
LOCAL 282, TEAMSTERS
supplier by Hennegan's employee and delivered by such
employee in Hennegan 's truck.
Hennegan's employees, including its truckdriver, are
members of the Mason Tenders Union. None of its
employees are members of Local 282. Subcontractors
working for Hennegan have their materials and supplies
delivered in the same manner as that described in
connection with Lasker-Goldman's subcontractors.
Turner Construction Company, a general contractor
internationally, is a member of Building Trades Employers'-
Association and The Cement League. It operates in the
Metropolitan New York area. It has no trucks of its own
and does not employ members of Local 282. Materials and
supplies purchased by it are delivered to jobsites in the
same manner as those delivered to Lasker-Goldman.
Manshul Construction Company, a general contractor of
Long Island City, New York, is a member of Building
Contractors Employers Association. It does not own or
operate any trucks in the metropolitan area of New York
City. Supplies and materials which it purchases are
delivered to it by the suppliers themselves in trucks of the
latter in the manner described above as to Lasker-
Goldman's purchase of the same. Supplies and materials
used by Manshul's subcontractors are delivered to Man-
shul's jobsites by such subcontractors in trucks owned or
operated by the contractors. Employees of such subcon-
tractors, and not Manshul's employees, drive these trucks
of the subcontractors.
Julius Nasso Concrete Corporation and Brennan &
Sloan, Inc., are members of the Cement League. They are
subcontractors of concrete work in building construction
in New York City. Nasso has one truck, which is operated
by its employee, a member of Local 282. Brennan has no
trucks and does not employ any members of Local 282.
Nasso's truck is used to cart debris away from jobs and
to transport equipment to jobs. But supplies and materials
purchased by Nasso are delivered to Nasso's jobsites in
trucks of the vendors. Said trucks are operated by
employees of the vendors; at no time are they driven by
Nasso's employees. Neither Nasso nor Brennan subcon-
tracts work to others; and Brennan does not purchase
materials or supplies.
Morse &' Grossman, general contractors in New York
City, belong to Building Contractors Employers Associa-
tion, Inc. It has one truck, which is operated by its
employee, a member of the Mason Tenders Union. This
truck delivers materials to jobsites and carts debris
therefrom. Such materials are obtained at its warehouse.
None of its employees belong to Local 282. Materials and
supplies purchased by Morse are delivered by the vendors
in trucks of the latter. Employees of such vendors, and not
of Morse, operate such trucks. Morse also subcontracts
some of its work. Trucks of such subcontractors are
operated by employees thereof and not by employees of
Morse.
Cedar Park Concrete, another member of the Cement
League, is engaged in reinforced concrete construction in
New York City and Newark, New Jersey. It owns one
truck, which is operated by its employee, a member of
Local 282. This truck transports materials from one job to
another and from one point to another on the same site.
689
But Cedar's purchases of supplies and materials are
delivered to it by the vendors in trucks of the latter. Such
trucks are operated by employees of the vendors and not
by Cedar's employees. Cedar does not subcontract work to
others.
W. J. Barney Corporation, a general contractor and a
member of the Cement League, does business in New
York, New Jersey, and Connecticut. It owns one truck,
which is operated by its employee, a member of Local 282.
It is used to transport materials from the yard to a jobsite,
or jobsite to jobsite. Supplies and materials purchased by it
are delivered to it in the same manner as those purchased
by Cedar Park Concrete, supra. Barney's subcontractors
use trucks operated by employees of the latter. Such trucks
are not driven by Barney's employees.
Herbert Construction Company, a member of Building
Contractors Employers Association, Inc., is a general
contractor in the metropolitan area of New York City. It
owns one small truck, which transports "small things." The
driver thereof belongs to no labor organization. Supplies
and materials are delivered to it by the vendors in the same
manner as those purchased by W. J. Barney Corporation,
supra. Herbert's subcontractors operate trucks of the latter
in the same manner as W. J. Barney Corporation, supra.
Colin Construction Company is engaged in alterations
contracting in New York City . It rents a truck, which is
operated only by its superintendents. Supplies purchased
by it are delivered to it by the vendors in the same manner
as those purchased by W. J. Barney Corporation, supra.
Trucks used by Colin's subcontractors are operated under
the same conditions as those of W. J. Barney Corporation's
subcontractors.
S. S. Silverblatt, Inc., a general contractor in New York
City, operates a half dozen trucks. Its employees, members
of Local 282, drive them. They are used to transport
lumber, steel , and equipment. However, its purchases of
supplies and materials are delivered to it by the vendors
under the same circumstances as purchases made by W. J.
Barney Corporation. Trucks of Silverblatt's subcontractors
are operated in the same manner as the trucks of W. J.
Barney Corporation's subcontractors.
Charles Miesmer, Inc., a general contractor in the
Greater New York City area, is a member of Building
Contractors Employers Association, Inc. Although it has
no trucks, it provides a station wagon for its superintend-
ent. Said superintendent is a member of the Plasterers
Union. None of Meismer's employees belong to Local 282.
Materials and supplies purchased by Meismer are deliv-
ered to it by the vendors in the same manner as purchases
made by W. J. Barney Corporation, supra. Trucks of
Meismer's subcontractors are operated in the same manner
as the trucks of W. J. Barney's subcontractors, as set forth
above.
Evidence adduced by the General Counsel further
disclosed (1) that other contractors than those heretofore
identified in the New York City Metropolitan area
purchased supplies and materials to .be delivered in trucks
to jobsites; (2) that the vendors thereof delivered the same
in trucks operated by employees of such vendors; (3) that
such employees are not members of Local 282; (4) that
such trucks at no time are driven by employees of the
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractors who purchase the materials and supplies; and
(5) that at no time are such trucks driven by members of
Local 282.
The contractors described in the preceding paragraph
are:
Anthony Mattera , Inc., a general contractor in Metro-
politan New York City and New Jersey, and a member of
Building Contractors EmployersAssociation, Inc. (Mattera,
which does not employ members of Local 282, also
leases and operates two trucks to transport tools and
equipment to and about jobsites and to remove debris from
such sites, said trucks being driven by members of the
Mason Tenders Union and not Local 282);
Castagna & Son, a general contractor and a member of
the Cement League and , through another association, a
member of the Building Contractors Employers Associa-
tion, Inc. (Castagna operates three trucks to transport
materials to and about jobsites , and, as a member of
BCEA, is a party to a high rise contract with Local 282
which covers these three trucks, such materials being used
over and over again and not being incorporated into a
structure); and
Adler & Nielson, a fabricator and erector of stairs and
miscellaneous iron , whose employees are represented by
Local 455 of the Ironworkers Union and who have been
driving Adler's trucks to jobsites delivering materials to
contractors thereat for at least 7 years, except for an
incident in 1969 at the World Trade Center, when Adler
was forced by the shop steward of Local 282 there to use
Local 282 men on its trucks. But Adler occasionally rents
trucks from Geist Trucking . On such occasions Geist's
employees, members of Local 282, drove Geist's trucks.
Additional evidence adduced by the General Counsel
discloses that Anthony Mattera, Inc., and Castagna & Son,
both contractors in the New York City area, subcontract
some of their work, that such subcontractors use trucks
operated by their own employees at jobsites, that such
employees are not members of Local 282, and that neither
Mattera's nor Castagna's employees operate such trucks of
the subcontractors.
John Zito is financial secretary and treasurer of
Shopman's Local 455 of the Iron Workers Union. He
testified in substance as follows: Among other things,
members of Local 455 deliver steel for their employers
(with whom Local 455 has contracts) in trucks to jobsites.
This practice of driving such trucks goes back at least to
1935 and is followed by a great majority of such employers.
A few employers, "a very small minority" in number, have
contracts with Locals 282, 456, and 807 of the Teamsters.
Members of the latter locals drive the trucks of these few
employers.
DeVoe Iron Works, Inc., is a steel fabricator and erector
whose employees are represented by four different locals of
the Iron Workers Union and have never been represented
by Local 282 of the Teamsters. Its steel products are
delivered to its customers at jobsites in DeVoe's own
trucks. These trucks are operated by DeVoe's employees,
who belong to Local 455 of the Iron Workers Union. This
has been the practice pursued by DeVoe since 1938.
Hohmann & Bernard , Inc., produces and sells construc-
tion supplies used in masonry and allied stone and
concrete work in the Metropolitan New York City area. It
has a contract with, and its employees belong to, Local 455
of the Iron Workers Union. For the past 20 years deliveries
of such materials to construction sites have been made in
Hohmann's trucks driven by its employees . But Hohmann
has never employed members of Local 282 to drive such
trucks.
On one occasion in April or May 1970, when Hohmann's
truckdriver Robert Shirlaw, a member of Local 455 of the
Iron Workers Union , delivered building material to a
jobsite, the shop steward of Local 282 informed Shirlaw
that Shirlaw was "not supposed to be on this job driving
the truck" unless he belonged to Local 282 . In addition,
said shop steward instructed Shirlaw "don ' t come back
here any more ." The next day said shop steward insisted
that Shirlaw stop making a delivery when Shirlaw arrived
at the j obsite . After telephoning to his superior Shirlaw left
without consummating the delivery.
In May 1970, employee Ed Manes of DeVoe Iron Works
made a delivery of materials to Northport Tower House at
Northport, Long Island, a construction project of Long
Island Lighting Company. But William O'Brien, the shop
steward of Local 282 at the jobsite, told Manes the truck
could not be unloaded because it was not driven by a
Teamster. At this point George Conway, the DeVoe
foreman on the job , notified his superiors of the situation.
As a result of this telephone call by Conway the truck left
without being unloaded . DeVoe's employees are members
of locals of the Ironworkers International ' Union.
E. The Contracts Involved
The first so-called high rise collective -bargaining con-
tract executed by Local 282 was made by it with
Metropolitan Building Contractors Association in 1968 for
the period June 1 , 1968 to June 30 , 1969. See General
Counsel's Exhibit 8. Section 9 thereof provides in part that
The driving of all trucks on the work site , or entering or
leaving the work site , shall be performed by employees
of the Employer covered by this Agreement, or by
employees of another employer who receives terms and
conditions of employment at least as favorable to
employees as thus ' set,forth in this Agreement.
By a memorandum of agreement dated July 30, 1969,
between Local 282, as the Union , and the Cement League
and the Building Contractors Employers Association, as
the employers , it was agreed that the foregoing contract
(General Counsel's Exhibit 8) "will be renewed for the
period July 1, 1969, to June 30, 1972, with [specified]
modifications ." This latter memorandum (General Coun-
sel's Exhibit 7) expressly provided in section lE that on
certain jobs the employers would "hold a pre-job confer-
ence with Local 282 to consider methods for insuring
compliance with Section 9 of [General Counsel 's Exhibit
8]"
Thereafter a "High-Rise Contract, 1969-1972" was
executed for the period July 1, 1969, to June 30, 1972,
between Local 282 and "The Cement League and any
other association of employers who may become party
hereto (hereinafter referred to as the `Association ') . . . on
behalf of [the Cement League ], all of its members , and all
other employers who, under the constitution and by-laws
LOCAL 282, TEAMSTERS
of the Building Trades Employers Association of the City
of New York are bound by agreements with the Associa-
tion." See General Counsel's Exhibits 9A and 13. Building
Contractors Employers Association, Inc. also became an
employer party thereto. Section 9 of said high rise contract
provides that
SECTION 9. WORKING CONDITIONS. A. The
driving of all trucks on the work site, or entering or
leaving the work site, shall be performed by employees
of the Employer covered by this Agreement, or by
employees of another employer who receives terms and
conditions of employment at least as favorable to
employees as thus set forth in this Agreement, provided
that trucks making deliveries to the work site directly
from suppliers located outside the New York Metropol-
itan Area may make one drop without complying with
this provision. All intra-site trucking and jockeying of
trailers dropped at the site will be performed by
employees of the employer. The Employer will not be
liable for any violation of this Agreement unknown to
him, until the Union calls the violation to his attention.
The Union will discuss with the Association any
problems which may apse under this provision. The
character and/or amount of work demanded by an
employer shall not be unreasonable nor shall it be
restricted by the Union, its representatives or members.
The employer shall designate a person or persons in his
employ who are authorized to issue directions and
assignments to the chauffeurs and drivers and these
employees shall not take directions from any one other
than a duly authorized representative of an employer.
Employees shall at all times observe and comply with
all general conditions obtaining on the job site and with
all safety policies adopted by the Building Trades
Employees' [sic] Association.
B. The Employer will immediately notify the Union
of all jobs on which it will work and shall further notify
the Union within 30 days of awarding the sub-contract
or supply contract the name and address of the sub-
contractor or supplier and such notification shall in all
cases be made to the Union prior to the commence-
ment of work by the sub-contractor or supplier. In
addition, the Employer will notify the sub-contractors
and suppliers of this section and shall write same into
the sub-contract or purchase order.
C. On all jobs with a total gross building cost of at
least $40,000,000 the Employer will at the time of
giving the above 30 days notice arrange to hold a pre-
job conference with the Union to consider methods of
assuring compliance with this Section 9.
By letter dated April 24, 1970, Local 282 informed
various Teamster locals and members that it intended to
assert its jurisdiction under the high rise contract " 100% in
the High-Rise industry" and that it would not "stand for
an infringement of [that] jurisdiction . . . by any Local
Union whether it be Teamster, AFL-CIO, or any other
group union or non-umon ." See General Counsel 's Exhibit
11. Local 282 further insisted in the February 1970 issue of
"The 282 Teamster," its monthly publication, that it would
enforce said section 9 of the high rise contract and urged
its members "to check out every job . . . to make certain
691
that all on -site trucks . . . are manned by 282 members. If
not, phone in a report to the umon and a delegate will hi-
tail it to the site pronto ." See General Counsel's Exhibit 12.
As recited above , it is conceded that Fortunato and
Local 282 had entered into a series of excavating contracts,
the last of which expired in 1969 . If material , the Local 282
excavating contract for the period 1969-1972 is set forth in
the record as Respondent 's Exhibit 1. As recited above,
Fortunato contends it signed one of these contracts and
mailed it to Local 282 . Fortunato's payments after June 30,
1969, to the pension fund , welfare trust fund , and dump
truck owners industry fund, as narrated above, were
submitted pursuant to the pertinent terms of this contract
relating to employer contributions thereto.
IV. RESPONDENT'S EVIDENCE REGARDING THE UNFAIR
LABOR PRACTICES
A. George K Becker's Testimony
Becker is a business agent for Local 282 . His testimony is
summarized in the ensuing paragraphs in this subsection.
Fortunato employs two truckdnvers , both of whom are
members of Local 282 . For "a good many years"
Fortunato has had a collective-bargaining agreement,
known as an "excavating contract," with Local 282, the
last one expiring in 1969 . In 1968 Becker asked Fortunato
to sign a contract which Local 282 had with Metropolitan
Business Association, but Fortunato refused . Sometime
thereafter Becker met with Fortunato a couple of times to
induce the latter to sign an MBA contract , but without
success.
Then, on December 7, 1969, Becker left a set of
"excavating contracts" at Fortunato's office . The next day
Becker "left the high rise contract with" Fortunato's
receptionist , accompanied by a note that Becker would
sign this document . Becker "never got" either the excavat-
ing contract or the high rise contract from Fortunato. To
Becker 's knowledge Fortunato has not signed a new
"contract of any type with Local 282." However, Fortuna-
to later told Becker that the former had signed the
excavating contracts and had returned them to Local 282.
The excavating contracts mentioned above contain
welfare and trust fund provisions to which an employer
party thereto makes contributions. An employer's failure to
make such payments is reported by the trustees to Becker
so that he can ascertain the cause of such omission.
However, Becker received . no complaints after December
7, 1969, that Fortunato had failed to make such payments.
It was stipulated as follows at the trial. Fortunato has
periodically kept up its payments to the Local 282 welfare
fund , the Local 282 pension trust fund , and the dump truck
owners industry fund, as required by the terms of the Local
282 "excavating contract ." These payments were accompa-
nied by monthly remittance report forms for the period
June 1969 (when the last contract expired) through
January 1971. See General Counsel's Exhibit 21. Such
payments were effected by checks of Fortunato. See
General Counsel 's Exhibit 22. Said checks were cashed by
the above three funds . In addition three checks dated
February 10, 1971, were remitted by mail by Fortunato to
the Local 282 pension fund, the Local 282 welfare trust
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fund, and the dump truck owners industry fund, respec-
tively, but as of the close of the trial it could not be
ascertained whether they had been cashed or deposited for
collection.
It was further stipulated at the trial that the above-
described remittance reports for each of said three funds
are sent by the respective funds each month to the
contractor, and that they were sent for the next month to
Fortunato upon receipt of the remittance report due for
each month.
Robert Sasso is employed by Local 282 as a business
agent. "To [Sasso's] knowledge" Fortunato's last contract
with Local 282 expired in 1969, and has not been renewed.
In this respect he corroborated Becker.
B. Anthony Pisano's Testimony
Pisano, an employee of Walsh Construction Company, is
the Local 282 shop steward at the Silver Lake Project in
Staten Island. A conspectus of his testimony is recited
below. As such employee he drives a flat bed truck
"servicing the whole jobsite along with other Teamster 282
men" employed by Walsh. The duties of such "Teamster
282 men" require them to "bring out material from the
storage trailers to wherever it's needed on the jobsite."
About March 1970, Remsco Associates, Inc., began to
work regularly on the above project as a subcontractor of
Walsh. Previously to this Remsco as such, subcontractor
performed work there intermittently, i.e., "two or three
times within a year." Materials for Remsco at this jobsite
"were going to the pump house station . . . a mile and a
quarter away." However, when Remsco materials arrived
at the jobsite area they were transported to such point on
outside trucking and then stored in storage trailers on the
jobsite. They were then transported from such storage
trailers to the pump house station in trucks driven by
members of Local 282.
This procedure was followed also as to materials
intended to be used at the project by other crafts, i.e.,
whenever materials were needed by any craft on the job at
said project such materials would be brought from the
storage trailers to the place where needed on trucks
operated by members of Local 282 employed by Walsh.
In late March 1970, the project manager informed
Pisano that the plumbers on the project were planning to
transport their materials in trucks of the plumbing
contractor operated by employees of the plumbing con-
tractor. This caused Pisano to remind such project
manager that this conduct would violate "a contract," and
that Pisano would "put in a claim for each and every day"
such trucks were driven on the job by "other than a
teamster."
Not long thereafter Pisano, by order of his project
manager, Al Mariano, met with Ben Shubert, the delegate
of the Plumbers, to try to resolve this dispute. At this
meeting Pisano insisted he lacked authority to make any
concessions and recommended that Shubert get in touch
with the Local 282 business agent. However, not long after
this meeting with Shubert, Pisano observed that Remsco's
materials were no longer being transported from the
storage trailers in trucks manned by members of Local 282.
Rather, such transportation was being performed in that
such plumbers were carrying their own materials manually
or in a wheelbarrow.
Pisano also described the procedure in transporting
materials at another construction jobsite known as Silver
Lake Water Storage. Heavy materials are delivered here
directly to the point of use in trucks operated by Teamsters
who are not members of Local 282. In addition, the
electricians on said jobsite drive their own trucks on said
site, and members of Local 282 do not drive such trucks.
Further, Pisano testified that when any truck approaches
a jobsite to deliver supplies and materials he inquires of the
driver whether the latter is a member of a Teamster local
and checks said driver's dues book to ascertain the
correctness of an answer. However, he abandoned this
practice in June 1970.
C. John Cody's Testimony
Cody is vice president of Local 282. Its high rise
agreement was first executed in 1968 to make uniform the
"hodgepodge of various contracts" which, prior to then,
"covered employees engaged in the high rise industry."
The employers to whom Local 282 encouraged this
solution participated with it in "working out language"
mutually beneficial to them and Local 282. In 1969 the
high rise contract was signed by the Building Contractors
Employers Association and the Cement League.
According to Cody, "in the years past we have delivered
through our employers . . . covered under various con-
tracts, materials to all . . . sites. We still do . . . . All the
driving, of most of the trucking on the jobsite, belonged to
282." However, this procedure, because of laxity, was not
enforced to its full extent. But, "on the whole, over the
years, we have done all the construction driving on the
site."
Cody then gave specific instances illustrating his forego-
ing contention. One employer he referred to is Starrett
Brothers & Egan, the general contractor who built
Stuyvesant Town, Peter Cooper Complex, about 22 years
ago. Others are Inland Block, Gotham Building Supply,
Sincrete, Raisler, Far Plumbing, Duklauer, J. L. Murphy,
Jarcho, Melnic, and various others, some of whom he
named. However, the employees of said contractors,
whether general contractors or subcontractors, who per-
formed driving work at jobsites did so because their
employers used Local 282 drivers pursuant to a contract
with Local 282 covering such drivers. He added that most
of these companies are now parties to the Local 282 high
rise agreement.
Cody further testified that when the high rise agreement
was negotiated with Building Trades Employers' Associa-
tion, some of the drivers being employed on construction
sites were not members of Local 282, being either
nonunion or members of craft unions, and that "we did not
have an awful lot of these people covered under contract."
In addition Cody corroborated Becker that Local 282
"does not have in its possession a collective bargaining
agreement signed by Fortunato," the last one having
expired in July 1969. However, as a trustee of the Local 282
pension trust fund, Cody knew that said fund "accepted
contributions from Fortunato . . . since July, 1969."
LOCAL 282, TEAMSTERS
D. Angelo De Vito's Evidence
One of the business agents of Local 282 is DeVito. An
abridgment of his testimony follows.
Walsh Construction, the general contractor on the Silver
Lakes Project, employs truckdnvers, members of Local
282, to haul materials and dirt at the site to other points at
the site where they are needed. Such materials include
steel, lumber, concrete, pipe, fittings, oakum, lead, bolts,
plumbing materials, and other building materials. Local
282 and Walsh are parties to an "excavation contract."
One of Walsh's subcontractors on the Silver Lakes
Project, performing plumbing or pipe work, is Remsco
Associates, Inc. Local 282 does not have a contract with
Remsco. In March 1970, a dispute arose between Walsh
and Local 282 because "the plumbers [of Remsco ] wanted
to take over the driving of [plumbing] materials around the
job." DeVito protested this claim of the plumbers because
he considered this to be work belonging to the teamsters
pursuant to the contract of Local 282 with Walsh.
According to DeVito that contract with Walsh provided
that members of Local 282 would "do all of the trucking
work in and around on the job, that [Walsh] was
responsible for all of the trucking work in and around on
the job," and that Walsh could subcontract "specialties"
but not trucking. DeVito so informed the delegate of the
Plumbers Union and Melville, a representative of Remsco,
whom he encountered at the jobsite. DeVito further told
these two men that if Walsh violated said contract the
Local 282 "men driving the concrete trucks would not
deliver concrete." At no time were such deliveries stopped
or obstructed. Nevertheless the electricians on that job
drove trucks carrying electrical materials and supplies in
and around the jobsite.
The Cement League and Building Contractors Employ-
ers Association, Inc., each with its principal office in New
York City, are associations whose members are employers
employing employees. Building Trades Employers' Associ-
ation of the City of New York, with its principal office in
New York City, is composed of employer associations, one
of which is the Cement League, said employer associations
in turn being composed of employers. who employ
employees. The constitutions and by-laws of the Building
Trades Employers' Association and of the Cement League
are in evidence as General Counsel's Exhibits 2 and 3,
respectively. Rosters of members of these two Associa-
tions, as well as of Building Contractors Employers
Association, are in the record as General Counsel's
Exhibits 4, 5, and 6, respectively.
V. CONCLUDING FINDINGS AND DISCUSSION
A. As to the Validity of the High Rise Contract
Section 8(e) was introduced into the Act by certain
amendments enacted by Public Law 86-257 in 1959. For
the law prior thereto on this branch of the case see Local
1976, Carpenters Union v . N.L.R.B., 357 U.S. 93, 108, and
62 Michigan Law Review, 1176, 1177. After said Section
8(e) was adopted the Supreme Court has expressly upheld
clauses in collective -bargaining contracts designed to
protect or preserve work traditionally , customarily, or
693
fairly claimable as, within the bargaining unit composed of
employees of the employer signing the contract containing
such clause. In addition, said Court held that conduct
calculated to obtain such a clause constitutes a primary
dispute. National Woodwork Manufacturers Association v.
N.L.R.B., 386 U.S. 612, 17 L. ed. 2d 357; Houston
Contractors Association v. N.LR.B., 386 U.S. 664. See 62
Michigan Law Review 1176, 1187-1188. The question then
is whether the high rise clause recited in paragraph 19 of
the consolidated complaint (see Section 9 of General
Counsel's Exhibits 9A and 13) transgresses Section 8(e) of
the Act.
While it is not surprising that the Board has not
heretofore passed upon the exact language of this clause, it
nevertheless has adjudicated clauses whose text was
substantially similar thereto. On the basis of said decisions
I conclude that said high rise clause does not contravene
Section 8(e) of the Act because it is "a primary work
preservation agreement outside the scope of Section 8(e)."
American Boiler Manufacturers Association, 167 NLRB 602,
604, 607. Thus the record indicates that Local 282 had an
"interest in preserving work opportunities, not outside
tactical aims, which governed the application of" said high
rise clause to employers with whom Local 282 enjoyed
contractual relations . Allied Supermarkets, Inc., 174 NLRB
No. 67. Cf. International Union, United Mine Workers of
America, 188 NLRB No. 121. Further, said clause "was not
tactically calculated to satisfy union objectives [outside the
unit], but rather had the object of preserving unit work for
[its members in the unit]." Retail Clerks Union, Local 648,
172 NLRB No. 200. See also Retail Clerks' Union, Local
No. 648, 171 NLRB No. 142, and Bituminous Coal
Operators Association, 188 NLRB No. 121. Cf. Local 38,
International Brotherhood of Electrical Workers, 191 NLRB
No. 109.
The fact that some of the disputed work was already
being performed outside the unit at the time Local 282
pressed its claim does not require a contrary result. This is
because I find that such work has been traditionally
performed by Local 282. Meat and Highway Drivers, Local
710 v. N.L.R.B., 335 F.2d 709, 714 (C.A.D.C.). And it has
been traditionally unit work even though, as I find, some of
this work had not been performed currently, continuously,
and exclusively. Highway Truck Drivers, Local 107, 159
NLRB 84, 99; Meat & Highway Drivers, Local 710 v.
N.LR.B., supra, at 713-714; Canada Dry Corporation v.
N.LR.B., 421 F.2d 907, 909 (C.A. 6). In my opinion,
Hoffman v. General Teamsters Local 386, D.C.E.D. Cal., 77
LRRM 2049, is distinguishable.
Other cases, while perhaps not widely divergent on their
facts , nevertheless are sufficiently different so that they are
distinguishable and, therefore , call for the application of
that principle which characterizes such facts as violating
Section 8(e) of the law . In this category mention may be
made of Milk Drivers Union, Local 753, 159 NLRB 1459,
enfd. 392 F.2d 845 (C.A. 7); Reno Employers' Council, 168
NLRB 893; and Sheet Metal Workers Local No. 150, 170
NLRB No. 116. Cf. Preformed Metal Products Company,
Inc., 173 NLRB No. 55; Retail Clerks Local Union No.
1288 v. N.LR.B., 390 F.2d 838 (C.A.D.C.); Alexander &
Baldwin, Inc., et al., 192 NLRB No. 43.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, on this aspect of the case I find that the validity
of the high rise clause is not impaired because it is not
restricted to a particular jobsite but extends to any jobsite
where a signatory employer proposes to do business with
another party. Mechanical Contractors Association of
Maryland, Inc., 190 NLRB No. 77.
B. As to Fortunato
At all times material herein Local 282 has been
recognized by Fortunato as the collective-bargaining
representative of its employees in an appropriate unit
composed of automobile chauffeurs, Euclid and Turnbull
operators, and drivers of six-wheeler tractors and trailers.
Fortunato for many years has signed an excavating
contract with Local 282 covering the former's truckdrivers.
The last of such contracts expired at the end of June 1969.
However, I find, crediting the General Counsel's evidence
and not crediting the evidence of Local 282 not consonant
therewith, that the parties agreed to renew the same, with
some modifications, for another 3 years; that Fortunato
signed said renewed contract; that Fortunato forwarded
said signed instrument to Local 282 for the latter's
signature; and that Local 282 never returned this docu-
ment to Fortunato.
In this connection, I find that Fortunato paid fringe
benefits and wages called for by its terms. Fortunato also
continued to make remittances to various funds as required
by the excavating contract which was renewed for the
period from 1969-1972, and in the manner and amounts
provided by said excavating agreement. See General
Counsel's Exhibits 21 and 22. The foregoing conclusion is
not vitiated by the fact, which I find, that at a meeting with
Local 282 on March 20, 1970, Fortunato promised to meet
with the Building Trades Employers' Association of Long
Island to discuss the high rise contract with Local 282. This
is because Fortunato did no more than promise to consider
a cancellation of the excavating contract. It is true, and I
rule, that a contract, such as the excavating contract, may
be revoked or terminated by the mutual agreement of the
parties. But I expressly find that Fortunato did not so agree
by merely promising to discuss entering into a different
contract. Accordingly, I find that the picketing of Fortuna-
to at the Hempstead High School job by Local 282 (see
General Counsel's Exhibit 14) from about March 10 to 20,
1970, violated the Act because it was designed to cause
Fortunato to sign another contract at a time when the
parties were bound by an existing contract.
Nevertheless, I find that said picketing is primary. It also
conforms to the Moore Drydock standards in 92 NLRB
549. Hence I find that the fact that the electricians and
carpenters employed by other employers than Fortunato
honored said picket line and for some period refused to
work behind it did not amount to a secondary boycott.
This is because the honoring of a primary picket line by
secondary employees, without more, does not convert such
picketing into a secondary boycott.
Nor do I find a secondary boycott in the fact, which I
find, that truckdrivers of suppliers and material men
refused to complete their deliveries after speaking to the
pickets, because the record is silent as to the content of
such conversations. This is true also as to Buckley, a driver
for employer Picone, who refused to cross said picket line
after being told by "some men" that "the job was on
strike." Absent evidence identifying such "men," I am
unable to find that they were actually or impliedly
authorized to speak on behalf of Local 282. Nor is a
different result dictated because Buckley's dispatcher, on
inquiry from Buckley, directed him to return to Picone's
yard with the load. Nothing in the record connects said
dispatcher with Local 282, so that his instructions cannot
be considered the conduct of said union.
A similar finding is hereby made as to John Erbis, a
truckdriver for K & B Sheet Metal, who was delivering
material to said Hempstead High School job. While I find
that a picket told Erbis that the picket "was going to call
the union delegate," said picket also informed Erbis, upon
inquiry as to whether Erbis could enter the jobsite, that the
picket could not stop Erbis. On this evidence I find that no
inducing or encouraging of Erbis not to perform services
for his employer occurred. Thus I find no proscribed
secondary conduct took place by reason of this incident.
Accordingly, I find no violation of Section 8(b)(4)(i) or
(ii) of the Act at Hempstead. Finally, I find that Local 282
has violated Section 8(b)(3) of the Act by failing to sign the
excavating contract to which it and Fortunato agreed and
which Fortunato has signed.
C. As to Remsco
As noted above, Walsh, the general contractor, on or
about February 2, 1968, awarded a subcontract to Remsco
to install the mechanical plumbing and piping systems,
together with related services, at the Silver Lake Park
Water Storage Tanks in Staten Island, New York., See
General Counsel's Exhibit 17. In April 1970, the Local 282
job steward at the site suggested to a supervisor of Remsco
that Remsco keep its truck off the job. Such trucks of
Remsco were driven by its employees who were members
of Plumbers Local 371. Remsco has a collective-bargaining
contract with Local 371. See General Counsel's Exhibits 16
and 19. At some time in early 1970 Local 282 insisted that
its contract with Walsh gave this work to members of 282
who were employed by Walsh; that Local 282 would not
allow members of any other union to do it; and that if
plumbers continued to do this work Walsh would not "get
any concrete on the job."
On these facts I find no inducement or encouragement of
secondary employees. Patently, the words used constitute
no more than a suggestion. For the same reason such
words do not rise to the stature of threatening, coercing, or
restraining, even though the expression "would not get any
concrete on the job" was used. In my opinion such words
do not contravene said section of the Act. In any event,
such words were uttered to Remsco and not to Walsh;
therefore no threat was made to Walsh concerning
cessation of its business.
Hence I find that no violations of Section 8(b)(4)(i) or (ii)
of the Act have been established respecting the conduct of
Local 282 towards Remsco.
D. As to Rehner
As stated above, Walsh Construction Company, the
LOCAL 282, TEAMSTERS
construction manager of South Beach Psychiatric Center in
Staten Island , New York, manages and supervises the
other contractors engaged at said site. One of those
supervised by Walsh is Rehner, who has the contract to
install all plumbing thereat. However, no contractual
arrangement exists between Walsh and Rehner.
In June 1970, following a contention of Local 282 that
Rehner was not abiding by "certain agreements with"
Local 282, said Local picketed Rehner at said site. See
General Counsel's Exhibits 18A and 18B. Said picketing
was pursuant to a prior request of Local 282 to Rehner that
Rehner's truck visiting the site, which heretofore had been
operated by a supervisor or by an employee belonging to
Local 371 of the Plumbers Union, had to be operated by a
member of the Teamsters union.
Since Walsh had no contract with Rehner, I find that
Local 282 could not lawfully demand that Walsh apply the
high rise clause (see paragraph 19 of the consolidated
complaint) to Rehner's trucks. Hence the threat of Local
282 to Walsh to picket amounted to a threat, coercion, and
restraint of Walsh within the meaning of Section
8(b)(4)(ii)(B) of the Act. Cf. N.L.R.B. v. Carpenters District
Council of Kansas City, 439 F.2d 225 (C.A. 8). However,
since this threat was never communicated to the owner of
the Psychiatric Center, Mental Hygiene Corp., I find that
no threat, coercion, or restraint occurred as to it.
And I find that some of the picketing, i.e., that which
does not identify any primary employer (General Counsel's
Exhibit 18(b)), is secondary picketing and thus contravenes
Section 8(b)(4)(i) of the Act within the purview of Moore
Drydock Co., supra. On the other hand, that picketing
which specifically names Rehner as the primary employer
complies with the conditions delineated in said Moore
Drydock case, and therefore cannot be treated as,secondaiy
picketing. (See General Counsel's Exhibit 18(a)). Cf.
Local 38, LB.E. W., 191 NLRB No. 109.
Further, I find that an object of said coercion and said
secondary picketing is to force or require Mental Hygiene
Corp. to cease doing business with Rehner and other
contractors, including Queens Construction and Post
Construction, engaged in work or services at said site, and
to force or require other persons, including Victor
Plumbing, to cease doing business with Rehner at said site,
and that such object is illegal under Section 8(b)(4)(B) of
the Act. Local 38, I.B.E. W., 191 NLRB No. 109, does not
dictate a contrary result.
Finally, on this branch of the case I find that the drivers
of some trucks making deliveries to said site turned away
without completing such deliveries after speaking to
DeVito of Local 282 or pickets at the jobsite. But the
content of said conversations is not disclosed in the record.
Accordingly, I am unable to find that this conduct by
DeVito and the pickets constitutes a violation of Section
8(b)(4)(i) or (ii) of the Act absent evidence as to what was
said to such truckdnvers.
E. As to Other Incidents Pertaining
to the Issues Herein
These incidents are recited above in section III(D). I
credit the evidence recited in said section. Although there
are a few variations therefrom, the general pattern
695
indicates that contractors belonging to employer associa-
tions with which Local 282 has contractual relations let out
some work to subcontractors ; that many of such subcon-
tractors used materials and supplies at the jobsites; and
that said materials or supplies were delivered to such sites
either in the trucks of such subcontractors or in the trucks
of the vendors thereof.
Further, I find that subcontractors who used their own
trucks to effect such deliveries did not employ members of
Local 282 to drive such trucks, and that Local 282
demanded such truckdriving work at the jobsite. But I find
that such demand did not contravene Section 8(e) of the
Act. This is because Local 282 lawfully was empowered to
claim this work under the high rise clause of the contract
which it had with said employer associations and which
extended to work at jobsites where such members were
engaged as contractors . I consider such demand as a work
preservation tactic . See the first proviso in Section 8(e) of
the Act. Accordingly, I shall recommend that this aspect of
the complaint be dismissed. In my opinion Pacific
Electrical Contractors, 192 NLRB No. 43, is distinguisha-
ble.
The evidence recited in said section III(D) of this
Decision also discloses , and I find , that a large number of
said subcontractors received their materials and supplies at
the jobsite in trucks manned by employees of the vendors
of such materials and supplies; that many of such
truckdnvers did not belong to Local 282; and that Local
282 demanded the work of driving such trucks at the
jobsites. Nevertheless I find that such demand is lawful
because it claims work fairly comprehended by the high
rise clause of the contract between Local 282 and the
employer associations, the members of which may be
engaged as contractors at such jobsites. Stated differently,
I find that the work of driving such trucks at the jobsites,
as distinguished from driving them to and away from such
sites , is work belonging to Local 282 and that Local 282
was lawfully entitled to insist that its members enjoy it.
Hence I shall recommend that this phase of the complaint
be dismissed.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Local 282 set forth in section V,
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.
VII. THE REMEDY
Having found that Local 282 has transgressed Section
8(b)(4)(i)(B) and (ii)(B) of the Act, it will be recommended
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. On the record before me I find that Local 282 is likely
to engage in such conduct in the future at jobsites where
employers with which it has contracts are engaged as
contractors. Consequently, the recommended Order will
provide that Local 282 refrain from so-called secondary
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
boycotts at jobsites where such employers are engaged in
such work . Local 282 also violated 8(b)(3) of the Act.
Upon the basis of the foregoing findings of fact and the
entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Local 282 is a labor organization within the meaning
of Section 2(5) of the Act.
2. Each of the persons described in section I, above, of
this Decision is an employer within the meaning of Section
2(2) and is engaged in commerce as defined in Section 2(6)
and (7) of the Act.
3. All Fortunato's automobile chauffeurs , Euclid and
Turnapull Operators , and drivers of six-wheeler (three
axle) tractors and trailers employed by it constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9 and 8(b)(3) of the Act.
4. By (a) picketing Fortunato at the Hempstead High
School job to obtain a contract with a high rise clause, and
(b) refusing to execute an excavating contract orally agreed
on by Local 282 and Fortunato , Local 282 has engaged in
unfair labor practices condemned by Section 8(b)(3) of the
Act.
5. By threatening to picket Walsh Construction Com-
pany for not applying the high rise clause to Rehner, Local
282 has engaged in unfair labor practices prohibited by
Section 8(b)(4)(ii)(B) of the Act.
6. By picketing (see General Counsel's Exhibit 18(b)) in
connection with its labor dispute with Rehner but without
identifying the primary employer, Respondent has engaged
in unfair labor practices contrary to the provisions of
Section 8(b)(4)(i)(B) of the Act.
7. Local 282 has not committed any other unfair labor
practices alleged in the complaint.
[Recommended Order omitted from publication.]