Local 363, International Brotherhood of Teamsters

National Labor Relations Board - Board Decisions

Nov 11, 1974

214 N.L.R.B. 868 (N.L.R.B. 1974)

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 363, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Ameri-
ca and Roslyn Americana Corp. Case 29-CC-385
November 11, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
JENKINS, AND PENELLO
On January 4, 1974, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, General Counsel and the
Charging Party filed exceptions and supporting
briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
CHAIRMAN MILLER AND MEMBER PENELLO, concurring
separately:
We concur in the result herein but find it necessary
to set forth certain special views in order to make
clear that we do not agree with the broad implica-
tions of some of the legal conclusions of the Admin-
istrative Law Judge.
We concur in the view that the special facts here
spell out a sufficient degree of control over the as-
signment of the work in issue by Roslyn so that Ros-
lyn cannot be properly considered a "neutral" and
must instead be considered a primary disputant.
Both Unity and Commander signed subcontract
agreements with Roslyn that granted the latter sub-
stantial control over these subcontractors' employ-
ees.' These agreements clearly show that Roslyn had
i These subcontract agreements provide, inter a/a, in par. 22
The Subcontractor agrees that all labor employed and materials fur-
nished by him will be agreeable to the Contractor and other trades
employed upon said structure, and agrees to save the Contractor harm-
less from all loss and damage resulting from labor troubles occasioned
by or connected with said work The failure of the Subcontractor to
employ labor or furnish material agreeable to such other trades as
aforesaid shall justify the Contractor in cancelling this Agreement
assumed a joint employer relationship with both
Unity and Commander. Thus, insofar as the alleged
8(b)(4)(B) violation is concerned, both Roslyn and
Commander were primary employers in the dispute
herein. For this reason, Respondent's conduct did
not violate Section 8(b)(4)(B) of the Act.
We also agree that the background evidence here
makes abundantly clear that Local 25's picketing had
been for the purpose of forcing and requiring Roslyn
to reassign the work in question to a subcontractor
who in turn could be counted on to assign the work
to persons represented by Local 25. We would not, as
did the Administrative Law Judge, pass judgment on
the question of whether that picketing violated Sec-
tion 8(b)(2) of the Act on the theory that it was an
attempt to cause discrimination in employment in vi-
olation of Section 8(a)(3). Instead, it seems to us to fit
more clearly into the kind of activity that would be
subject to our scrutiny under a charge alleging a vio-
lation of Section 8(b)(4)(D) of the Act in that it quite
plainly was in support of Local 25's jurisdictional
claims to the work.2
Similarly, while we agree with the Administrative
Law Judge's construction of the facts here in issue as
showing that the purpose of the picketing by Respon-
dent was to secure a reassignment of the work by
Roslyn to a contractor who could be counted on to
employ persons represented by Respondent, we can-
not conclude, as did the Administrative Law Judge,
that such picketing and inducement by Respondent
"was lawful because the objective was proper." The
most that can be said of such picketing, and the most
that should have been said in this proceeding, was
that it did not violate Section 8(b)(4)(B) of the Act
because of the lack of neutrality of Roslyn. Indeed,
just as Local 25's initial picketing was in support of
its jurisdictional claim to the work, so also, in our
view, was Respondent's picketing to have the work
reassigned to persons represented by it.
Since we would base the decision here on the very
narrow ground above indicated, we would also disa-
vow much of the language used by the Administra-
tive Law Judge characterizing Respondent's conduct
as "reasonable, peaceful, confined only to the direct
necessities of the situation," and other such gratui-
and in par 37, in part
The Contractor may require the Subcontractor to dismiss any workmen
or workman or others employed on the work whom the Contractor or
Architect may deem incompetent, improper or a hindrance to the pro-
gress of any of the work on the structure, whereupon, such workman,
workmen or others shall be discharged, and any so discharged shall not
be again employed on any part of the work without the written consent
of the Contractor
2 On September 11, 1974, the Regional Director for Region 29 issued an
order granting Roslyn Americana Corporation's request to withdraw the
charge in Case 29-CD-164 and canceled a notice of hearing after the Board
remanded the proceeding for a full hearing under Sec 10(k) of the Act
214 NLRB No. 129
LOCAL 363, INTERNATIONAL BROTHERHOOD OF TEAMSTERS
tous characterizations which appear to ignore wheth-
er the conduct may have been in violation of Section
8(b)(4)(D).
DECISION
CHARLES W. SCHNEIDER, Administrative Law Judge:
Upon a charge filed on August 21, 1973, by Roslyn Amen-
cana Corp., herein called Roslyn, the General Counsel of
the National Labor Relations Board, by the Regional Di-
rector of Region 29, issued a Complaint and Notice of
Hearing on September 11, 1973, against Local 363, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called Respon-
dent. The complaint alleged that the Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the National Labor Rela-
tions Act by picketing and other related conduct.
Copies of the Complaint and Notice of Hearing thereon
were served on the Respondent, Roslyn, and upon Com-
mander Electric Inc., Hauppauge, New York, referred to
herein as Commander.
Respondent duly filed an answer denying the commis-
sion of the alleged unfair labor practices.
Pursuant to notice a hearing was held at Brooklyn, New
York, on October 1, 1973. The General Counsel, the Re-
spondent, and Roslyn were represented at and participated
in the hearing. All parties were afforded full opportunity to
be heard, to introduce material evidence, to present oral
arguments, and to file briefs.
On November 12, 1973, briefs were filed by counsel for
the General Counsel and by counsel for the Respondent.
Upon consideration of the evidence of record and of the
briefs, I make the following.
FINDINGS OF FACT
I COMMERCE
Roslyn Americana Corp. is and has been at all times
material herein a corporation duly organized under, and
existing by virtue of, the laws of the State of New York.
At all times material herein, Roslyn Americana has
maintained its principal office and place of business at 310
Northern Boulevard, Great Neck, New York, where it is,
and has been at all times material herein, continuously en-
gaged in the business of general construction contracting.
During the past year, which period is representative of
its annual operations generally, Roslyn Americana, in the
course and conduct of its business, purchased steel and
other goods and materials valued in excess of $50,000 of
which goods and materials valued in excess of $50,000
were transported and delivered to it, and received from
other enterprises, including, inter alia, Simon Holland and
Sons Inc., located in the State of New York, each of which
other enterprises had received the said goods and materials
in interstate commerce directly from States of the United
States other than the State in which it is located.
Roslyn Americana is, and has been at all times material
herein, a person within the meaning of Sections 2(1) and
8(b)(4) of the Act.
869
At all material times Roslyn has been engaged as a gen-
eral contractor in the construction of a hotel at a construc-
tion site located at 1800 Northern Boulevard, Roslyn, New
York, referred to herein as the "Roslyn site."
Commander, L & L Contracting Corporation, Cerrone
Construction Corporation, Atlas Erectors, Horowitz Bros.,
Inc., VIP Masonry, Simon Holland and Sons, Inc., Victor
Plumbing Supplies, Inc., Sal Picone and Sons, and Port-O-
San, are New York corporations (except for Port-O-San,
which is a New Jersey corporation), engaged in the busi-
ness of supplying labor, materials or services, for the con-
struction industry in the geographical area involved. Ex-
cept for Victor and Sal Picone, each of these is either a
contractor on, or supplier for, the Roslyn project, pursuant
to contract with Roslyn. Victor is a supplier of plumbing
materials to Horowitz for the project, Sal Picone a supplier
of masonry materials to VIP. At all times material herein,
these contractors or suppliers were persons engaged in
commerce and in industries affecting commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 363 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, and
Local 25, International Brotherhood of Electrical Workers,
AFL-CIO, are labor organizations within the meaning of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The case involves the validity of picketing , and accom-
panying incidents of inducement of employees not to cross
the picket line, engaged in by the Respondent at the Ros-
lyn jobsite.
B. The Facts
The following facts are bottomed on a stipulation en-
tered into at the hearing between the General Counsel, the
Respondent, and Roslyn.
At no time material herein has Respondent had any la-
bor dispute with the following contractors referred to in I,
above: L & L, Cerrone, Holland, Atlas, Horowitz, VIP,
Victor, Picone or Port-O-San.
On May 23, 1973, Roslyn signed a subcontract agree-
ment with Unity Electrical Company, an electrical subcon-
tractor, for the electrical work on the hotel being construc-
ted at the Roslyn site. This contract contained the follow-
ing 3 clauses, inter alia:
(a) Paragraph 8 which provided, in part, that if the sub-
contractor should "by any action cause the stoppage of the
work of the other trades upon this structure, or fail to com-
ply in any other respect with any of the articles of this
Agreement," the contractor (Roslyn) was authorized upon
48 hours' notice to take possession of all the
subcontractor's material, tools, appliances, and equipment
on the premises and complete the subcontractor's work
himself, holding the subcontractor liable for any excess
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
costs or damages incurred by reason of the subcontractor's
default.
(b) Paragraph 22, which provided as follows:
The Subcontractor agrees that all labor employed and
matenals furnished by him will be agreeable to the
Contractor and other trades employed upon said
structure, and agrees to save the Contractor harmless
from all loss and damage resulting from labor troubles
occasioned by or connected with said work. The fail-
ure of the Subcontractor to employ labor or furnish
material agreeable to such other trades as aforesaid
shall justify the Contractor in cancelling this Agree-
ment.
(c) Paragraph 37, which provided, in part, as follows:
The Contractor may require the Subcontractor to dis-
miss any workmen or workman or others employed on
the work whom the Contractor or Architect may deem
incompetent, improper or a hindrance to the progress
of any of the work on the strucure; whereupon, such
workman, workmen or others shall be discharged, and
any so discharged shall not be again employed on any
part of the work without the written consent of the
Contractor.
At all times material herein, Unity and the Respondent
have maintained in full force and effect a collective-bar-
gaining agreement with Respondent respecting Unity's em-
ployees.
On July 10, Unity began to perform its work at the Ros-
lyn site. On the same day Local 25, International Brother-
hood of Electrical Workers, AFL-CIO, a labor organiza-
tion, began picketing daily at the Roslyn jobsite.
Employees of several subcontractors, including Cerrone
and Horowitz, at the Roslyn site honored the picket line
and declined to come to work.
During this time Cerrone complained to Herbert
Schwartz, the secretary of Roslyn Americana Corporation,
that the company could not get carpenters at the site be-
cause of the Local 25 picketing. Mr. Schwartz then advised
Unity of the problem.
Thereafter, Mr. Schwartz contacted Commander Elec-
tric, which had been the second lowest bidder on the job in
question.
Commander's president, William Haugland, advised
Schwartz that Commander was a Local 25 shop and that,
as soon as Commander was awarded the subcontract, the
pickets would be removed.
On July 19 Roslyn notified Unity by letter that it was
exercising its contractual right to terminate its subcontract-
ing agreement with Unity for the performance of electrical
services at the Roslyn site, and cancelled the contract.
On the same date Roslyn awarded the subcontracting of
electrical services at the Roslyn site to Commander and
signed a subcontract with Commander. Inter alia, this con-
tract contained provisions identical with those in para-
graphs 8, 22, and 37 of the Unity contract referred to
above.
Unity worked at the site on July 18, 1973, but not there-
after. On July 19, Local 25 ceased its picketing. No unfair
labor practice charges were filed with the Board respecting
the picketing conducted by Local 25.
On July 24, Commander commenced performing electri-
cal services for Roslyn at the Roslyn site . The Commander
work was performed by Commander employees who were
covered by contract between Commander and Local 25.
On July 24, Respondent began to picket at the Roslyn
jobsite. Pickets appeared everyday thereafter through Sep-
tember 21, 1973, usually two in number. The pickets were
members of Local 363 and/or employees of Unity, and
were authorized to picket on Respondent's behalf by Re-
spondent.
They have picketed at the one entrance to the site bor-
dering on Northern Boulevard. All deliveries for all em-
ployers at the site and all employees of employers at the
site make use of the common entrance.
From July 24 through August 26, 1973, the picket signs
carried by Respondent's pickets read: "Lockout. Do not
cross. Teamsters on strike. I.B. of Teamsters, Local 363."
Beginning on August 27 and continuing through Sep-
tember 21, 1973, the picket signs carried by Respondent's
pickets read:
Roslyn Americana Corp. has locked out members of
Local 363 of the Unity Electric, International Brother-
hood of Teamsters, 184 Fifth Avenue, New York City.
Help us win.
Throughout the picketing Commander as well as Roslyn
has been present at the jobsite. The only person present for
Roslyn at the jobsite is Superintendent Edwin R. Rich,
who maintains a trailer office at the site.
On July 24, 1973, Victor Plumbing Supplies attempted to
make a delivery to Horowitz Brothers, the plumbing sub-
contractor at the Roslyn site . A Local 363 picket ap-
proached Odle Harris, the Victor driver, while he was in
the truck and asked him what local he belonged to. Harris
replied he belonged to Local 282, I.B.T., and the picket
then told him that there was a Teamster lockout at the
jobsite. Harris called his employer, informed him of the
situation, and was told to keep rolling.
The delivery was not made.
Horowitz thereafter ceased attempts to get deliveries
from suppliers, but continued working at the site by mak-
ing use of material at the site and by bringing some in by
private car.
Horowitz has no dispute with Respondent. Its employees
are represented by the Plumbers Union.
In or about July 1973, Port-O-San was not able to ser-
vice the portable sanitary units at the jobsite under ar-
rangements between Port-O-San and Roslyn, as the Port-
O-San drivers, represented by a Teamster local, would not
cross the picket line. Port-O-San notified Roslyn that, as
the units could not be serviced, Roslyn should nail them
shut or remove them for sanitary reasons. Roslyn decided
to have them removed, and a Port-O-San driver entered the
jobsite to remove the units on or about August 24, 1973.
On or about August 8, 1973, Sal Picone & Sons was to
make a delivery of concrete blocks to VIP Masonry, one of
the subcontractors at the Roslyn site. When the Picone
LOCAL 363, INTERNATIONAL BROTHERHOOD OF TEAMSTERS
truck arrived at the site, the Picone driver, Neil Taibbi,
asked the two pickets what was going on. They replied that
they were picketing because they had been working on this
job and had been laid off. Taibbi called his office and
spoke with dispatcher Bob James, who contacted Local
282, I.B.T., which represents the Picone drivers, and was
told by a shop steward that Business Agent Cody said that
the driver should not go into the site.
Taibbi did not make the delivery.
Thereafter, Picone decided not to make any deliveries to
VIP at the jobsite. VIP has no contract with Respondent
and has no labor dispute with it.
On August 27, 1973, Simon Holland & Sons attempted
to make a delivery of steel to Roslyn at the site. When
Kenneth Gruntz, the Holland driver, approached the site, a
picket came over to the truck and told him that the Electri-
cians were out on strike and that the Electricians belonged
to the Teamsters. The picket asked Gruntz if he belonged
to the Teamsters, and Gruntz replied yes. Gruntz called his
office and advised his employer of the picketing. Gruntz
was instructed to return to the plant without making the
delivery. Roslyn eventually picked up the steel at the Hol-
land plant.
The picketing ceased on September 21, 1973, following
an agreement made between counsel for the Respondent
and counsel for the Regional Director that the picketing
would cease at least until October 5, 1973, along with an
agreement to postpone the pending hearing under Section
10(1) in the United States District Court for the Eastern
District of New York, which hearing involves basically the
same issues involved herein, as well as an issue involving
Section 8(b)(4)(D) of the National Labor Relations Act.
In addition to those specified above, Roslyn has other
subcontractors pursuant to its general contract who are
working and have worked at times material herein at the
Roslyn site.
Roslyn and Commander are distinct entities with no
common officers, directors, offices, or labor relations poli-
cy.
The pickets picketed throughout the entire regular work-
day during the period in which picketing took place. In
addition to the employees of various employers at the site,
Mr. Rich was regularly present while this picketing took
place.
C. Contentions
The General Counsel contends that the Respondent (1)
violated Section 8(b)(4)(i)(B) of the Act by inducing and
encouraging employees of subcontractors and delivering
companies not to cross the picket line, and (2) violated
Section 8(b)(4)(ii)(B) by coercing Roslyn, the subcontrac-
tors, and the delivering companies to cease doing business
with each other and Roslyn. The General Counsel's argu-
ments in support of this contention are as follows.
(1) Roslyn was an "independent" general contractor
and a secondary employer. Commander was the primary
disputant. Roslyn and Commander are in an independent
business relationship and not "allies." The subcontractors
were neutrals and not "allies" of Commander. Therefore
the conduct aimed at Roslyn, the neutral employers, and
871
their employees, was violative of Section 8(b)(4). (2) The
first picket signs did not clearly identify the employer-dis-
putant and hence did not conform to the so-called Moore
Drydock standards.' (3) Though the second picket signs
purported to be aimed only at Roslyn as a primary em-
ployer, the foreseeable effect of the Respondent's conduct
demonstrates that the Respondent's object was unlawful.
(4) This is not a classic case of work preservation justifying
the Respondent's conduct. Respondent had no contract
with Roslyn and no contract with Commander. Roslyn had
no role in determining Commander's employment comple-
ment, which was the actual target of the Respondent's ac-
tions. And finally, (5) if Local 25 engaged in unlawful pick-
eting to force Unity off the job and to substitute Com-
mander, the Respondent was not justified in taking the law
into its own hands and committing a similar violation;
there were legal means available to Respondent and Unity
to achieve their ends.
The Respondent contends that the object of the picketing
was the preservation of the jobs of its members on the
electrical phase of the project. Though the Respondent
does not claim that Roslyn and Commander were allies,
nevertheless the Respondent urges that Roslyn was a pri-
mary employer. Specifically, says the Respondent, when
Roslyn, in response to the picketing by Local 25, took the
affirmative act of terminating its contractual relations with
Unity, Roslyn became a belligerent and was no longer a
neutral, and was thus not entitled to the protections of
Section 8(b)(4) of the Act.
D. Conclusions
1. The nature of the controversy
In essence the case involves a protest, through picketing
of, and attempts to shut down, a construction project, by
employees of a subcontractor (Unity) who have lost their
jobs on the project. The loss of employment was a conse-
quence of conduct by a labor union (Local 25), and by the
general contractor (Roslyn), which had as its purpose the
displacement of Unity's employees, and their replacement
by members of Local 25. The acts of Roslyn and Local 25
were consciously aided by another employer (Command-
er). To the extent revealed by this record, the conduct by
which the loss of employment was brought about fits the
description of unfair labor practices defined in Section
8(a)(l), (2), and (3), and 8(b)(1)(A), (2), and (4) of the Na-
tional Labor Relations Act.
On this state of facts one might have supposed that Ros-
lyn, Local 25, and perhaps Commander, would be the re-
spondents here. Instead it is the displaced employees and
their aggrieved union who are alleged to be the malefac-
tors. In this Kafkaesque setting it is perhaps merely appro-
priate that (1) the accuser should be Roslyn, and (2) that
the conduct with which the Respondent is charged, should
be of the same nature as the conduct of Local 25 which
created the controversy.
1 Sailors ' Union of the Pacific, AFL (Moore Drydock Co ), 92 NLRB 547
(1950)
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. General conculsions
For the reasons given hereafter, I find (1) that the Re-
spondent has not committed a violation of Section
8(b)(4)(B) of the Act, and (2) that in any event the pro-
cesses of the Board are not available to those who, like the
Charging Party, seek to use the Board as an instrument to
further subversion of the statute.
3. Responsibility for the controversy
I infer that all subcontractors on the project, and all
suppliers of material or services to the project who are un-
der contract with Roslyn,2 operate under contracts similar
to those of Unity and Commander. Section 22 of the con-
tracts with Roslyn provide that failure of the subcontractor
to employ labor and furnish materials agreeable to Roslyn
and others employed on the project authorize Roslyn to
cancel the contracts. Sections 8 and 37 of the contracts
provide further authority to effectuate the provisions of
section 22. One obvious effect (and a presumed intent) of
the clauses was to authorize the imposition, by the subcon-
tractors and/or by Roslyn, of a boycott on all materials
used on the project by subcontractors, or supplied by
Roslyn's supplier-contractors, and selection of employees
of subcontractors, on the basis of their union or nonunion
origin or affiliation. The clauses were construed and uti-
lized here to achieve the latter result. As thus used, the
contracts are suggestive of a form of "hot cargo" or "yel-
low dog" agreement between employers.
The object of Local 25's picketing, which resulted in re-
fusals of employees of subcontractors to cross Local 25's
picket line, was to secure the removal of Unity's electri-
cians because of their membership in the Respondent and
their nonmembership in Local 25. When Roslyn canceled
its contract with Unity and substituted Commander as the
electrical subcontractor, the Respondent's members lost
their employment on the project. This was the purpose, the
intended result, and the necessary effect of Local 25's ac-
tion, Roslyn's cancellation of Unity's contract, the award
to Commander, and Commander's acceptance of it. The
actions of each and all of that trio, individually and in
concert, constituted a single and unified course of conduct
amounting to coercive interference and restraint upon the
rights of Unity's employees to select their own labor orga-
nization and bargaining agent. Additionally such conduct
constituted discrimination in the employment of the
Respondent's members, inevitably tending to encourage
membership in Local 25 and to discourage membership in
the Respondent. Such conduct, whether the subject of a
charge or not, is a classic example of unfair labor practices
outlawed by the statute. That no such charges have been
filed, and that consequently no formal finding of the com-
mission of such unfair labor practices can be made, is not
controlling. The Board is not forbidden to recognize a ma-
terial fact, or to accurately characterize it, merely because
the victim has chosen to pursue other means of lawful relief
2 This includes all suppliers alleged to be objects of secondary activity by
the Respondent at the jobsite, except Victor and Picone, who are under
contract with Horowitz and VIP, respectively
in preference to the perhaps more uncertain and less sum-
mary procedures of the statute. The failure or inability of
an aggrieved party to institute litigation does not preclude
consideration of substantive facts relevant to issues in a
proceeding.'
I make no formal finding that Roslyn, Local 25, or Com-
mander committed unfair labor practices within the mean-
ing of the NLRA, since there is no such complaint here.
That circumstance does not, however, prevent my finding
as a fact, as I do, that the actions of this trio, to the extent
reflected in the record, fits the description of conduct iden-
tified in Section 8(a) and (b) of the statute as unfair labor
practices. The issues of the nature and of the effect of that
conduct are necessarily raised for resolution here by the
pleadings and by the stipulation of the parties.
4. Whether Roslyn was a neutral employer
In this triarchy, Roslyn, as an indispensable and primary
contributor to the displacement of Unity's employees, is a
primary disputant. He who strikes the unprovoked blow is
no innocent neutral or wronged bystander.
I specifically reject the General Counsel's assertion that
Roslyn had "no role in determining the employment com-
plement of Commander." Of course if that were so, and if
Roslyn had in fact been a powerless neutral in the contro-
versy, Roslyn would have been unable to affect the em-
ployment of Unity's employees in the first place. In such
case pressure by the Respondent against Roslyn would
have been secondary in character and unlawful. But, as we
have seen, Roslyn retained authority to supervise
Commander's selection of labor and material to insure that
it be "agreeable" to itself and the others on the project.
Indeed it was the exercise of that very authority which pro-
duced the present litigation
5. Whether Commander was a neutral
Commander, too, was no mere passive observer or neu-
tral. It was an active, conscious, and wilful partner in the
affair, and shared equally in the rewards. As has been seen,
when Roslyn contacted Commander during the picketing
by Local 25, Commander advised Roslyn that "as soon as
Commander was awarded the subcontract, the pickets
would be removed." An employer is in no position to give
such assurances on behalf of a labor organization unless he
is acting in concert with or as a conduit for the organiza-
tion. In any event, he is clearly no neutral. I therefore find
that Roslyn, Local 25, and Commander were participants
in a coercive scheme to remove Unity's employees from the
job because of their membership in the Respondent union
and their nonmembership in Local 25. They engaged in a
common course of conduct subversive of the purposes of
3 See, for example, Times Publishing Company, 72 NLRB 676, 683 (1947)
Although the Act [at that time imposed] no affirmative duty to bargain
upon labor organizations, a union's refusal to bargain in good faith
may remove the possibility of negotiation and thus preclude the exis-
tence of a situation in which the employer's own good faith can be
tested If it cannot be tested, its absence can hardly be found
And see also N L R B v Kelco Corp, 178 F 2d 578, 580-582 (C A 4, 1949)
(conviction of crime not required as condition of valid refusal of reinstate-
ment to strikers who engage in violence)
LOCAL 363, INTERNATIONAL BROTHERHOOD OF TEAMSTERS
the Act. Roslyn and Commander were thus allied employ-
ers and primary disputants in the controversy; as such they
and their projects were subject to picketing and other con-
ventional attack available against pnmary disputants in la-
bor disputes. N.L.R.B. v. Business Machine Mechanics, Lo-
cal 459 [Royal Typewriter Company], 228 F.2d 553, 557-559
(C.A. 2, 1955), cert. denied 351 U.S. 962 (1955); Douds v.
Metropolitan Federation of Architects, AFL Local 231 (Pro-
ject Engineering Co.), 75 F.Supp. 672 (D.C.N.Y., 1948).4
Commander was an employer who consciously took over
the performance of the work in controversy for its own
gain . It injected itself into the primary dispute in order to
assist in the effectuation of the objectives of Local 25 and
Roslyn-the removal of the Respondent 's members as
electrical employees on the project, and their replacement
by members of Local 25. Commander thus became an ally
of Roslyn and Local 25 and subject to the lawful applica-
tion of pressures permissible against a primary employer.
In the instant case this includes the right to induce "all
those approaching the situs whose mission is selling , deliv-
ering or otherwise contributing to the operations which the
strike is endeavoring to halt." United Steelworkers of Ameri-
ca [Carrier Corporation], v. N L.R B, 376 U.S. 492, 499
(1964).
The fact that in its brief the Respondent does not claim
that Roslyn and Commander were allies does not foreclose
my finding it. The issue is clearly raised by the facts and
the General Counsel's contentions. The General Counsel
specifically contends in his brief that Roslyn and Com-
mander were "in an independent business relationship, and
are not allies."
6. Legality of the picketing and inducement
a. In summary
The initial picket signs used by the Respondent, declar-
ing that there had been a lockout and that the Respondent
was on strike, were essentially truthful; as were the substi-
tuted signs placed in use on or about August 27, 1973,
which averred that Roslyn had locked out the
Respondent' s members . Since Roslyn was a primary dispu-
tant and was adequately identified in the August 27 signs,
the picketing thereafter and any inducement of employees
of secondary employers not to make deliveries to, or to
service, Roslyn at the jobsite were clearly lawful. Since
Commander was an ally, the picketing and inducement
were equally lawful as to it. Beyond that, however, I find
that the Respondent's entire course of conduct was lawful,
because the objective was proper.
4 See also National Woodwork Manufacturers Association v N L R B, 386
U S 612, 627 (1967), where the Supreme Court, specifically approving the
Douds and Royal Typewriter decisions, said
The literal terms of § 8(b)(4)(A) also were not applied in the so-called
"ally doctrine" cases, in which the union's pressure was aimed toward
employers performing the work of a primary employer's striking em-
ployees The rationale , again , was the inapplicability of the provision's
central theme , the protection of neutrals against secondary pressure,
where the secondary employer against whom the union's pressure is
directed has entangled himself in the vortex of the primary dispute
873
b. The objective
The purpose of the picketing was to secure the restora-
tion, and consequently the preservation, of work on the
jobsite that had been rightfully performed by Respondent's
members. A strike and picketing at a jobsite for such pur-
poses are not unlawful for two reasons: First because di-
rected at conduct of primary disputant employers and al-
lies actively doing business at the jobsite, and secondly be-
cause the objective was lawful. That there was no contract
between the Respondent and Roslyn, or between the Re-
spondent and Commander, providing for such employ-
ment, is irrelevant. In the National Woodwork case the Su-
preme Court stated that a determination as to whether
there was a violation of Section 8(b)(4)(B) requires a deter-
mination as to whether the union's objective is work pres-
ervation or instead some more remote aim. Thus, the Court
said, in part (p. 644):
The determination whether the "will not handle"
sentence of Rule 17 and its enforcement violated §
8(e) and § 8(b)(4)(B) cannot be made without an in-
quiry into whether , under all the surrounding circum-
stances, the Union 's objective was preservation of
work for Frouge 's employees , or whether the agree-
ments and boycott were tactically calculated to satisfy
union objectives elsewhere.
In the instant case , the objective related to the preservation
of work at the jobsite , and not to the satisfaction of union
purposes elsewhere . That the National Woodwork case in-
volved the question of the legality of an agreement for the
performance of certain work at the jobsite, and of a union's
strike to enforce that agreement , does not distinguish the
National Woodwork case from this one . The basic principle
declared by the Court in the National Woodwork opinion
was that a union 's action at a construction site , directed at
a primary employer for the purpose of perserving work
opportunities for the union's members at the site , is not a
violation of Section 8(b)(4)(B) of the Act.
This is not to say that where the contractor is without
authority or power to comply with the demand of the
union , a boycott is similarly protected. The Board has spe-
cifically held to the contrary . See Local Union No. 438,
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, et al. (George Koch Sons, Inc.,), 201 NLRB 59
(1973). But here there is no such infirmity of power. Roslyn
retains complete authority under its contract with Com-
mander to displace Commander and/or its Local 25 em-
ployees and to reinstate Unity and/or its employees,
Respondent 's members.
In the later case of N.L. R.B. v. Carpenters District Coun-
cil of Kansas City and Vicinity, AFL-CIO [Bldrs. Assn. of
Kans . City], 398 F .2d 11, 13 (C.A. 8, 1968 ), the Court of
Appeals for the Eighth Circuit interpreted the National
Woodwork and other cases as embodying a principle appli-
cable virtually haec verba to the instant situation. Thus
that court said:
Where the primary object of the strike is the preserva-
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of traditional union work subcontracted away by
the employer, such pressure is not proscribed under
8(b)(4)(B).
In that case carpenters employed on 3 building projects
struck, but did not picket, the projects because of the refus-
al of masonry subcontractors to hire carpenters on their
masonry crews, in accordance with asserted traditional
area practice and agreements, thus shutting down the pro-
jects for several weeks. In remanding the case to the Board
to take further evidence as to the existence of such practic-
es and understandings, the court of appeals said that if
they existed in fact, the dispute was primary and not sec-
ondary in character, and the strike lawful.
That the Kansas City Carpenters case did not involve
picketing, or specific instances of inducement of employees
of neutral subcontractors, does not distinguish it from the
present one. In the Kansas City case the Carpenters not
only struck the masonry subcontractors whose refusal to
hire Carpenters was the focus of the dispute; they also
struck the general contractor on the project, who would
ordinarily be considered to be a secondary and neutral em-
ployer. What the court found controlling was not the rela-
tionship between the struck employers and the controversy,
but rather the existence of a traditional practice or under-
standing as to which employees should perform the work.
In the instant case, we have a specific contract or undertak-
ing-the equivalent of an understanding-that the work
should be performed by Unity's employees, members of
Respondent.
(c.) The applicability of Moore Drydock
As has been seen, the picket signs from July 24 through
August 26, 1973, did not name Roslyn or Commander as
the employers involved in the dispute. In the ordinary case,
picketing of a common work situs where neutral employers
are involved, without clear identification of the primary
employers, would be violative of Section 8(b)(4), under the
principle of the Moore Drydock case.5 This, however, is not
the ordinary case. I find Moore Drydock inapplicable in
these unique circumstances, for the following reasons.
(1) The picketing, and the inducement of employees of
subcontractors and employees of suppliers not to cross the
picket line, were protected by the proviso to Section 8(b)(4)
of the Act. The proviso states:
The Respondent was the recognized representative of
Unity's employees , and, as the original picket sign stated,
was engaged in a strike . The premises (the project) were
under the control of Roslyn . The word "person" in the
proviso includes "labor organizations" (NLRA, Sec. 2(l)).
It not being unlawful for a person to refuse to enter upon
the premises , it could not be unlawful for a union to induce
employees to exercise that lawful privilege , in the unique
circumstances of this case.6
As we have seen , section 22 of the contracts between
Roslyn and the subcontractors , including Unity, required
the subcontractor to employ labor agreeable to Roslyn and
the other trades on the job , under pain of cancellation of
the contract by Roslyn. Section 37 of the contracts imple-
mented that commitment by requiring the subcontractor to
dismiss any employee deemed by Roslyn, inter alia, "a hin-
drance to the progress of any of the work on the struc-
ture"-a clause fairly construable (as it was in fact con-
strued) to include any employee whom Roslyn or other
trades found "disagreeable" because of their union affilia-
tion. The sum total of the various contractual provisions
was to give Roslyn substantial control over the personnel
policies and employment complement of the subcontrac-
tors-an authority which it exercised so as effectively to
secure the termination of the employment of Unity's em-
ployees. A person who possesses and exercises that degree
of control over personnel policies and employee comple-
ment is to be deemed an employer of the involved employ-
ees within the meaning of the proviso to Section 8(b)(4) of
the Act. See N.L.R.B v. Hearst Publications, Inc., 322 U.S.
111 (1944): N.L.R.B. v. Gluek Brewing Co., 144 F.2d 847,
855-856 (C.A. 8, 1944).
This is not to say that Roslyn would be an employer of
those employees for any other purpose. It is only to say
that in the circumstances of this case , including the degree
of control exercised by Roslyn over Unity's and
Commander 's employment policies and personnel , and the
purposes of Section 8(b)(4), the proviso is to be so con-
strued in this instance.?
6 Cf N L R B v Rockaway News Supply Co, 197 F 2d 111, 114-115 (C A
2, 1952), affd 345 U S 71 (1952), where the Court of Appeals , in a dictum,
suggested that for a union having a no -strike contract with an employer to
encourage its members not to cross such a picket line, would be a violation
of Section 8(bX4) There is no showing of any no-strike contract here be-
tween subcontractors of Roslyn , or their suppliers , and unions of the in-
duced employees, including the Respondent
7 As the Supreme Court said in the Hearst case (pp 128- 129 Citations
and footnotes have been omitted)
Provided, That nothing contained in this subsection (b)
shall be construed to make unlawful a refusal by any
person to enter upon the premises of any employer
(other than his own employer), if the employees of
such employer are engaged in a strike ratified or ap-
proved by a representative of such employees whom
such employer is required to recognize under this Act.
On the peculiar facts of this case , I find that Roslyn is to
be considered as an employer of Unity's employees within
the meaning of the proviso.
5 Sailors ' Union of the Pacific (Moore Drydock Co), 92 NLRB 547 (1950)
Congress recognized those economic relationships cannot be fitted
neatly into the containers designated "employee" and "employer"
which an earlier law had shaped for different purposes Its Reports on
the bill disclose clearly the understanding that "employers and employ-
ees not in proximate relationship may be drawn into common contro-
versies by economic forces ," and that the very disputes sought to be
avoided might involve "employees [who] are at times brought into an
economic relationship with employers who are not their employers " In
this light , the broad language of the Act's definitions , which in terms
reject conventional limitations on such conceptions as "employee,"
"employer," and "labor dispute," leaves no doubt that its applicability
is to be determined broadly, in doubtful situations, by underlying eco-
nomic facts rather than technically and exclusively by previously estab-
lished legal classifications
Hence "technical concepts pertinent to an employer 's legal responsi-
bility to third persons for acts of his servants" have been rejected in
LOCAL 363, INTERNATIONAL BROTHERHOOD OF TEAMSTERS
This construction of the proviso to Section 8(b)(4) is not
inconsistent with the Board's decision in Building and Con-
struction Trades Council of New Orleans (Markwell and
Hartz, Inc.), 155 NLRB 319 (1965). In that case a majority
of the Board held that the work-related standards set out in
the General Electric case 8 are not applicable to picketing at
construction sites, and that therefore picketing at gates re-
served for the exclusive use of neutrals at such sites was
violative of Section 8(b)(4)(B). As indicated, the Markwell
and Hartz case involved the validity of picketing at gates
reserved for neutrals. There were no such reserved gates
here. In addition, Markwell did not involve a strike by the
employees of the primary employer, as here. And finally,
Markwell did not involve the applicability of the proviso to
Section 8(b)(4).
(2) A further reason, in my judgment, for finding Moore
Drydock inapplicable here is that, because of the sweeping
authority of Roslyn over employment on, and purchases
for, the project, and because of the sui generic nature of the
controversy, and the Respondent's objective, the entire
construction site should be considered a primary, and not
merely a common, situs, and as such subject to uncondi-
tional peaceful inducement to honor the picket line. Thus,
all employers on, and suppliers for, the project, who were
within the reach of Roslyn's authority over their selection
of personnel and materials, should likewise be within the
reach of the Respondent's authority to induce, since all
subcontractors and suppliers were, in the circumstances,
"contributing to [Roslyn's] operations which [caused the
strike and] which the strike [was] endeavoring to halt."
United Steelworkers of America [Carrier Corp ] v. N L.R.B.,
376 U.S. 492, 499 (1964).
In my judgment, the action of the subcontractors, in en-
tering into contracts with Roslyn which authorized Roslyn
to control their purchasing and employment policies, effec-
tively assented to concerted activity by employees at the
site of the project to influence the subcontractors' actions
concerning purchases and personnel. It will be recalled
that the contracts committed subcontractors to furnish la-
bor and materials agreeable inter aka to "other trades,"; a
phrase which obviously includes Unity's electricians, as
well as employees of material or service companies who
came on the premises to deliver materials or to service con-
tractors. The electricians were thus authorized by the con-
tracts to seek to influence the subcontractors, other sup-
porting employers, and their employees, to aid the
Respondent's efforts to secure reemployment on the pro-
ject. The effect on the subcontractors was thus twofold: (1)
Their contracts constituted an agreement authorizing the
Respondent's picketing and inducement here for the
various applications of this Act both here and in other federal
courts There is no good reason for invoking them to restrict the
scope of the term "employee " sought to be done in this case. That term,
like other provisions , must be understood with reference to the purpose
of the Act and the facts involved in the economic relationship Where
all the conditions of the relation require protection , protection ought to
be given
It is not necessary in this case to make a completely definitive limita-
tion around the term "employee " That task has been assigned primar-
ily to the agency created by Congress to administer the Act
s Local 761, International Union of Electrical, Radio and Machine Workers,
AFL-CIO (General Electric Co) v N L R B, 366 U S 667 (1961)
875
Respondent's objective-an authorization which, so far as
I am aware, is not prohibited by any language or policy in
the Act, and (2) it made the subcontractors and their sup-
pliers employer contributants to resulting controversy of
the kind we have here. As to (1), as a union may contract
away the normally protected right of employees to engage
in union activity on its behalf on an employer's premises
(May Department Stores, 59 NLRB 976, fn. 17 (1944) ), or
to engage in strikes during the term of a collective-bargain-
ing contract (N.L.R.B. v. The Sands Manufacturing Compa-
ny, 306 U.S. 332 (1939)) so, in my view, an employer may
contract away his right under the statute to insist that em-
ployees not be induced to refrain from crossing a picket
line. The purpose of Section 8(b)(4) is to protect neutral
employers from involuntary involvement in labor disputes.
If they are not truly neutrals they are not entitled to such
protection. If they are genuine neutrals, and choose to
waive the protection, I know of no public policy forbidding
it. As to (2), as contributants to the controversy, the sub-
contractors were not immune to peaceful inducement of
their or other employees in an effort to reduce the conflict.
Similar considerations apply to the inducement of employ-
ees of suppliers and servicemen contributing to the com-
mon endeavor, who are to be deemed bound by the com-
mitments of their principals-Roslyn or the
subcontractors, as the case may be.
In summary, since Roslyn had reserved the power and
authority to displace any of the subcontractors, their em-
ployees, or their suppliers, and exercised that control to
oust the Respondent and its members from the project, the
Respondent should be accorded right under the statute to
seek to undo that action by peaceful influence brought to
bear on the same individuals at the situs of the dispute.
(3) Finally, at least insofar as the subcontractors were
concerned, Moore Drydock should be held inapplicable
here because neither the subcontractors nor their employ-
ees could have been misled by the language on the first
picket signs. The purpose of requiring such identification is
in order that persons approaching the picket line not be
misled as to the controversy. None of the subcontractors or
their employees could have had any doubt that the objec-
tive of the picketing was to protest the displacement of
Unity, its employees, and Respondent's members, by Com-
mander, its employees, and Local 25 members. As has been
seen , when Local 25 established the first picket line, some
of the tradesmen refused to cross it. Also subcontractor
Cerrone complained to Roslyn that the picketing prevent-
ed Cerrone from getting carpenters. The subcontractors
and all employees on the project must therefore be held to
have been aware that the objective of Respondent's signs
was to preserve work on the jobsite which Respondent's
members had rightfully held, and in the loss of which Ros-
lyn and Commander were directly involved. This being so,
the failure of the signs to omit the names of Roslyn and
Commander is of no significance so far as the subcontrac-
tors and their employees were concerned. The fact that in
other circumstances or contexts the picketing might have
been deemed unlawful as to the subcontractors, because it
did not clearly identify the primary disputant or dispu-
tants, is not controlling on the particular and unique facts
here.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. The Denver Building Trades case
Several contentions of the General Counsel related to
the case of N.L.R.B. v. Denver Building & Construction
Trades Council, et al. [Gould & Preisner], 341 U.S. 675
(1951), on which the General Counsel seemingly primarily
relies, require discussion.
The Denver Building Trades case also involved the validi-
ty, under Section 8(b)(4), of a strike by a labor organization
against a general contractor at a project site. There, howev-
er, the similarity to the present situation ends. The two
cases are quite distinguishable. As the Court of Appeals
noted in the Carpenters Kansas City case, supra, Denver
Building Trades did not concern preservation of work, as
does the instant case.
In the Denver opinion, the Supreme Court said that the
fact that though the general contractor there had "some
supervision over the subcontractor's work" did not elimi-
nate the independent contractor relationship, or make the
general and the sub co-employers. That, however, is not
the situation here. Roslyn possessed and exercised substan-
tial authority over the subcontractors' employment poli-
cies, and had power over their purchasing policies as well.
This was not mere supervision over "work," as in Denver
Building Trades, that is, authority to require proper perfor-
mance-a matter within the control of the subcontractor.
Here the subcontractor's contract is subject to termination
for reasons over which he has no control whatever-the
disposition, or lack of it, of Roslyn and the other subcon-
tractors and trades, to find his labor and materials, and his
choice of unions, "agreeable" to them. I do not consider
this the type of "independence" the Supreme Court had in
mind in Denver Building Trades. In addition, Denver Build-
ing Trades did not involve any action by the general con-
tractor similar to that employed by Roslyn here.
The General Counsel also uses the opinion in Denver
Building Trades to construct a syllogism demonstrating the
illegality of the Respondent's conduct. Thus, paraphrasing
other language of the Court, the General Counsel says that
the only way the Respondent could attain its purpose of
having its members employed on the job was to "force
Commander off," an action which could be achieved "only
through Roslyn's termination of Commander's subcon-
tract." The result, the argument proceeds, is that
Respondent's action "must have included among its ob-
jects that of forcing Roslyn to terminate its subcontract
with Commander." I have several difficulties with that rea-
soning.
In the first place Commander need not have been forced
off the job in order to provide employment for the
Respondent's members who had been displaced. Secondly,
it would not have been necessary to terminate
Commander's subcontract to achieve that result. Roslyn's
contract with Commander provided the necessary authori-
ty to require Commander to hire the Respondent's mem-
bers. Of course Roslyn would not have exercised that au-
thonty, since the very purpose of ousting Unity and hiring
Commander was to be nd of the Respondent' s members.
But merely because it would be absurd to expect authority
to be exercised in a particular instance does not extinguish
its existence . And the fact that any such action by Com-
mander might have involved it in a conflict with Local 25
has no bearing on the existence of Roslyn's power to re-
quire compliance with its own contract with Commander.
It follows that achievement of the Respondent's objective
did not require forcing Roslyn to terminate its contract
with Commander. Both had alternative choices.
But even if we were to assume that the General
Counsel's premises and his suggested conclusion are cor-
rect, the equation is, in the end, academic. For it is based
on another nonexistent premise, namely, that Roslyn and
Commander were not allies. In that circumstance, the
Respondent's picketing and its other conduct revealed by
this record, seeking to compel Roslyn and/or Commander
to restore the Respondent's members to the employment of
which they had been deprived, are not, in my view, pro-
scribed by any prohibitions which I find in Section 8(b)(4)
of the Act.
7. Recrimination
In his brief the General Counsel, noting that the Respon-
dent would argue that it was the victim of unlawful con-
duct, states that this is no defense. Thus, the General
Counsel, in language more aptly addressed to Roslyn, says
that:
[T]his fact should not justify Respondent in effect to
take the law into its own hands and commit a similar
violation.
It is quite true that recrimination is not authorized by the
Act; unfair labor practices by one party do not justify re-
prisals in kind. It is also true, I assume, that if unfair labor
practice charges had been filed against the culpable parties,
on the facts disclosed here, absent a settlement compatible
with the Act, the General Counsel would have issued com-
plaint, appropriate violations would have been found and
adequate remedial orders issued. However the existence of
a legal remedy of one kind or character does not, unless
principles of preemption are applicable, preclude resort to
other legal or other private and lawful courses of action. It
is not a prerequisite to the valid exercise of self-defense
that one first file a charge of assault. Similarly, the statute
does not preclude resort to self-help to correct unfair labor
practices, in the absence of binding contractual commit-
ment not to do so.' Here the means which the Respondent
e This is a familiar principle in NLRB law A union may strike to correct
unfair labor practices by an employer, in preference to filing unfair labor
practice charges Mastro Plastics Corp, 103 NLRB 511 (1953),rehearing de-
nied 214 F 2d 462 (C A 2, 1956), affd 350 U S 270 (1956) An employer is
not required to prosecute criminally employees who engage in picket line
LOCAL 363, INTERNATIONAL BROTHERHOOD OF TEAMSTERS
utilized to counter and to seek to have undone the loss of
its members' fobs were reasonable, peaceful, confined only
to the direct necessities of the situation, and were lawful.
8. Abuse of Board process
Finally, I think it contrary to public policy to permit
Roslyn, as the Charging Party, to maintain the present ac-
tion. Anyone, of course, can file a charge under the Act,
and normally if the charge has merit, it should be pro-
cessed, regardless of the motives of the charging party. Un-
fair labor practices by a primary employer, or unclean
hands, are not generally a defense to 8(b)(4) charges. Bo-
mat Plumbing & Heating Co., 131 NLRB 1243 (1961).
However, in my view, the Act is not to be invoked by
those who defy it, for the purpose of furthering their de-
struction of the statutory policy. The Supreme Court has
held that the Board may refuse to permit its processes to be
abused-indeed that the Board is required to consider evi-
dence of such imposition as a basis for possible withhold-
ing of action on, or dismissal of, charges N.L.R.B v. Indi-
ana & Michigan Electric Company, 318 U.S. 9, 18 (1943). In
recognition of this policy the Board has on a number of
occasions declined to uphold charges or to issue remedial
orders where to do so would have been to permit inappro-
priate use of Board processes, or where granting relief to
the charging party would have been antithetical to public
policy or otherwise incompatible with the purpose of the
Act. See, for example, Vaughn Bowen, 93 NLRB 1147
(1951); Bausch & Lomb Optical Co, 108 NLRB 1555
(1954); Laura Modes Co., 144 NLRB 1592 (1953); Fer-
nandes Supermarkets, Inc., 203 NLRB 568 (1973).
In the instant case it is plain that Roslyn's present inter-
est in the policies of the statute and the processes of the
Board is to use them to insulate its unfair practices from
effective private attack by the Respondent. The
Respondent's objective here is not antithetical to the Act;
on the contrary it is consistent with statutory policy and its
conduct is directed to that end. Roslyn's objective and its
conduct are quite the contrary; to subvert the statutory
policies and to use the processes of the Board to assist it in
doing so. The Respondent's objective and conduct being in
harmony with the statute, and the Charging Party's in de-
rogation of it, the decision is plain Whether the Charging
Party's resort to the Board be characterized as an abuse of
process or simply as an effort to enlist the Board as an ally
to checkmate the Respondent's use of effective private
means to bring about a speedy adjustment of the contro-
versy, it must be advised that the Board and the statute are
not available for such purposes.
9. Summary of conclusions
1. The conduct of Local 25 in seeking, and of Roslyn in
effecting, the cancellation of Roslyn's contract with Unity
for the purpose of terminating the employment of the
877
Respondent's members employed by Unity, and replacing
them with members of Local 25, and the action of Com-
mander in assisting in the effectuation of that objective,
was of a nature declared unlawful by Section 8 of the
NLRA.
2. Commander was the ally of Roslyn in achieving the
aforesaid objective.
3. The objective of the picketing and inducement by the
Respondent was to undo the action of Roslyn and Com-
mander and to restore the Respondent's members to their
employment on the project. The Respondent's conduct was
therefore (a) in protest of wrongful deprivation of employ-
ment, and (b) for the purpose of achieving the preservation
and restoration of employment opportunities for the
Respondent's members on the project.
4. All the Respondent's conduct in pursuance of its ob-
jective occurred at the site of the dispute and of the em-
ployment which was the subject of the controversy.
5. It was within the power both of Roslyn and Com-
mander, singly or in concert, to comply with the objective
of the Respondent's picketing and inducement.
6. Both Roslyn and Commander were thus primary em-
ployers.
7. Roslyn possessed substantial control over the employ-
ment and purchasing policies of Commander and of all the
subcontractors on the involved project.
8. By entering into contracts with Roslyn which re-
quired all subcontractors to employ labor and purchase
materials agreeable to all other contractors and trades on
the project, each subcontractor (1) delegated substantial
control over his labor and material policies to all other
contractors and trades, and (2) assented to the exercise of
influence, including picketing and inducement of its em-
ployees and the employees of any of its suppliers, designed
to modify or determine the hiring policies or employment
complement of any subcontractor.
9. The picketing and inducement by the Respondent for
the objectives stated was thus authorized by the various
contracts.
10. The Roslyn site was not a common situs within the
usually accepted sense of that term, but was instead a pri-
mary situs subject to unlimited picketing and peaceful in-
ducement of employees and others for the purpose of ac-
hieving the restoration of Respondent's members to their
employment on the project.
11. The case of Moore Drydock Co is inapplicable.
12. In any event, the conduct of Roslyn being contrary
to the policies and purposes of the Act, the processes of the
Board are not available to Roslyn as a charging party for
the purpose of preventing the use by the Respondent of
conventional peaceful private methods at the jobsite de-
signed to induce Roslyn and/or Commander to have
Respondent's members restored to their employment.
13. The Respondent has not violated Section 8(b)(4)(B)
of the statute, and the complaint should therefore be dis-
missed.
violence before discharging them, and he need not file ULP charges before
asserting in defense to an 8(a)(5) complaint that the union has not bargained
in good faith See Kelco Corp, 178 F 2d 578 (C A 4, 1949), and Times
Publishing Co, et a!, 72 NLRB 676 (1947), referred to supra
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion of Law ORDER 10
The Respondent has not engaged in unfair labor practic- The complaint is dismissed in its entirety.
es by the conduct alleged in the complaint and disclosed by
the record.
10 In the event no exceptions are filed as provided by Sec 102.46 of the 48 of the Rules and Regulations, be adopted by the Board and become its
Rules and Regulations of the National Labor Relations Board, the findings , findings , conclusions , and Order , and all objections thereto shall be deemed
conclusions , and recommended Order herein shall , as provided in Sec 102 waived for all purposes