Local 445, Teamsters

National Labor Relations Board - Board Decisions

Dec 15, 1971

194 N.L.R.B. 579 (N.L.R.B. 1971)

LOCAL 445, TEAMSTERS 579
Local 445, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Ameri-
ca and Edward L. Nezelek, Inc. Cases 3-CP-166
and 3-CC-569
December 15, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 26, 1971, Trial Examiner David S. David-
son issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions) and to adopt his
recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Local 445, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Liberty, New York, its officers,
agents, and representatives, shall take the action set
forth in the Trial Examiner's recommended Order.
1 For the reasons stated in his dissenting opinion in Muskegon
Bricklayers Union #5, etc (Greater Muskegon General Contractors
Association), 152 NLRB 360, Member Fanning would not find that article
XI, D, of the contract, the "self-enforcement" provision, is unlawful, or
that the Respondent's picketing to obtain agreement to such clause
violated Section 8(b)(4)(1) and (u)(A) of the Act.
2 Member Kennedy would find that an object of Respondent's picketing
was to force or require Nezelek to cease doing business with Pshonick, as
contended by the General Counsel in his exceptions to the Trial
Examiner's Decision, and would modify the recommended Order
accordingly. N.L RB v. Denver Building & Construction Trades Council
(Gould & Preisner), 341 U S. 675, 688-689 (1951).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: Pursuant to
charges filed on October 2, 1970, by Edward L. Nezelek,
Inc., referred to herein as Nezelek, Inc., a consolidated
complaint issued on January 15, 1971. The complaint
alleges that since August 8, 1970, Respondent has induced
and encouraged individuals employed by Nezelek, Inc.,
and other persons to engage in strikes or refusals to perform
work or services and has threatened, coerced, and
restrained Nezelek, Inc., and other persons with objects of
forcing or requiring Nezelek, Inc., (1) to enter into an
agreement containing certain clauses prohibited by Section
8(e) of the Act, and (2) to cease doing business with I.
Pshonick & Son, a supplier of ready-mix concrete, thereby
violating Section 8(b)(4)(i) and (ii)(A) and (B) of the Act.
The complaint further alleges Respondent picketed Neze-
lek, Inc., from September 2, 1970, to December 1, 1970,
with an object of forcing or requiring Nezelek to recognize
and bargain with Respondent at a time when it was not
certified as the representative of the'employees of Nezelek,
Inc., thereby violating Section 8(b)(7)(C) of the Act. In its
answer, Respondent denies the commission of any unfair
labor practices.
A hearing was held before me in Liberty, New York, on
March 4 and 5, 1971. At the close of the hearing the parties
were given leave to file briefs which have been received
from all, the parties. Pursuant to arrangements made at the
hearing, certain documents were submitted after the close
of the hearing which have been marked and received as
Respondent's Exhibits 4(a)-(v). Following submission of
these documents Respondent requested reopening of the
hearing for the purpose of taking additional testimony.
Respondent's request was denied. The request, an Order To
Show Cause, responses thereto from the General Counsel
and Charging Party, and the order denying the request,
respectively, have been marked and received as Trial
Examiner's Exhibits 1-5.
Upon the basis of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS
Edward L. Nezelek, Inc., a New York corporation with
its principal office at Johnson City, New York, is a general
contractor in the construction industry. During the year
preceding issuance of the complaint, Nezelek, Inc., in the
course of its business operations received goods and
materials valued in excess of $50,000 directly from points
outside the State of New York.
During 1970, Nezelek, Inc., entered into a contract with
the county of Sullivan, New York, for the construction of
Sullivan County Community College at Loch Sheldrake,
New York, for $7,600,000. In connection with the
performance of that contract, Nezelek, Inc., entered into an
agreement with I. Pshonick & Son, of Liberty, New York,
for purchase and delivery of ready-mix concrete to the
jobsite.
I find that Nezelek, Inc., and Pshonick are employers
engaged in commerce or operations affecting commerce
within the meaning of the Act and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Respondent, Local 445, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
194 NLRB No. 92
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, is a labor organization within the meaning of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Initial contacts between Respondent and
Nezelek, Inc.
The Sullivan County Community College contract was
awarded to Nezelek, Inc., on July 13, 1970,1 and Nezelek,
Inc., received notice of the award 2 days later.
On July 9 Respondent sent Nezelek, Inc., a form letter
over the signature of Secretary-Treasurer Theodore Daley
noting that Nezelek, Inc., had bid for a job within its
jurisdiction, requesting that Nezelek, Inc., sign a copy of its
area Heavy, Highway and Building Construction agree-
ment, referred to herein as the Heavy Construction
agreement, which was enclosed, and requesting a prejob
conference "relative to the work which shall be performed
at this particular project" in the event that Nezelek, Inc.,
was awarded the contract.
A day or two later Respondent Business Representative
Raymond Ebert telephoned Nezelek Chief Estimator
Douglas Cullison III. Ebert congratulated Cullison on
getting the job and stated that he wanted to sit down and
meet with him. Cullison told Ebert that Nezelek, Inc., was
the low bidder but had not yet been awarded the job. Ebert
said he would call back again after the award was made.
On July 14, Ebert called Culhson again and told him that
he had read in the newspaper that Nezelek, Inc., had been
awarded the job and that he wanted to set up a prejob
conference. Cullison asked what the prejob conference was,
and Ebert explained that it was a meeting to discuss
conditions on the job. Cullison said they would get all the
business agents of the various trades together to thrash
things out so that they would know who had jurisdiction
over what. Ebert said he did not want a meeting with all the
business agents but wanted a meeting between Nezelek,
Inc., and representatives of Respondent. Cullison said that
Nezelek, Inc., didn't employ Teamsters so that there was no
point to such a meeting. Ebert replied that everyone
employed Teamsters and asked why Nezelek, Inc., should
not. Ebert asked if Nezelek, Inc., was going to subcontract
the excavating work. Cullison replied that he hoped to but
that he hadn't found a subcontractor yet. Ebert gave
Cullison the names of several excavating contractors in the
area, including Maggiolo Corporation 2 and Echo, and said
he would ask them to contact Nezelek, Inc., about the work.
Cullison said that he would be in the vicinity of the job
toward the end of the month, and they agreed to meet at
that time.3
During the last week in July Ebert met Cullison and
Edward Nezelek, president of Nezelek, Inc., at a restaurant
in Monticello, New York. Their conversation lasted only a
few minutes. There was some talk of meeting again during
the next month for a prejob conference, and Cullison said
he thought they were being premature and rushing things
because the job was not going to start for a couple of
months. Ebert introduced Cullison and Nezelek to
representatives of Echo, an excavating contractor, and
Ebert then left.
On August 12, Ebert telephoned Cullison and asked if
Nezelek, Inc., had entered into an agreement with Echo.
Cullison replied that the excavating contract had been
given to Maggiolo. Ebert again asked for a prejob
conference, and Cullison again questioned the need for it
because Nezelek, Inc., did not employ Teamsters. Ebert
said that was what the prejob conference was for, to
straighten that out. Cullison then said that he would come
to Respondent's offices in Newburgh, New York, on
August 18 when he was going to be in the area on other
business.
2. The August 18 prejob conference
On August 18, Cullison went to Respondent's Newburgh
office accompanied by Job Superintendent Jack Hiller and
Project Manager Narindar Kumar Bhendari. There they
met with Ebert, Richard Raskin, Respondent's public
relations counsel, and James Street, a member of Respon-
dent. Toward the end of the meeting Secretary-Treasurer
Daley joined the group.
All the participants in the meeting testified. Cullison,
Hiller, and Bhendari gave one version of the meeting.
Ebert, Daley, Raskin, and Street gave another version,
differing sharply in most significant respects from the
version of the General Counsel 's witnesses . While there are
some variations in the testimony of Cullison, Hiller, and
Bhendan, I am persuaded for reasons set forth below that
Cullison, whose recollection seemed most complete of the
three, should be credited as corroborated by Hiller and
Bhendari and find as follows as to the August 18 meeting.
At the outset of the meeting the participants were
introduced to one another. Ebert introduced Street to
Cullison as the teamster on the job, and Cullison made no
response to that characterization. Ebert then referred to a
prejob questionnaire and proceeded to ask a number of
questions about the work to be performed on the job,
making notes on the questionnaire as Cullison answered.
Cullison told Ebert that Maggiolo would do the
excavating work and several other aspects of the job that
Ebert asked about. Ebert voiced no objection to Maggiolo
at that time. Cullison told Ebert that precast structural
concrete would be used on the job and that work would be
done by Dynacrete. Ebert asked if Dynacrete was union,
and Cullison said be presumed that they were.
Cullison told Ebert that Nezelek, Inc., was going to do
concrete work itself, including the forms, but that they were
probably going to use forklifts to move the forms. Ebert
said that Sullivan County Redi-Mix was the only union
ready-mix company in the county. Cullison said that he
understood that Pshonick was union. Ebert looked at Street
i All dates referred to herein occurred in 1970 unless otherwise
indicated.
2 Maggiolo Corporation is referred to in the transcript and some
correspondence as Maggiola The correct name is taken from a letterhead
in the documents received after the close of the hearing.
3 Cullison and Ebert both testified to this conversation. The only
conflict in their testimony related to whether Cullison raised questions as to
the nature of the prejob conference and the need for it According to Ebert,
Cullison never questioned him about these matters. For reasons set forth
below, I have credited Cullison and not Ebert.
LOCAL 445, TEAMSTERS 581
who nodded and said the drivers were members of
Respondent. Ebert said that Pshonick was not acceptable
because Pshonick did not have an agreement with him.
Ebert said that the Company could not use any lumber
company in Sullivan County and gave Cullison the name of
the nearest union lumber company.
There was some discussion of jurisdiction of the various
crafts over materials arriving at the jobsite and transporta-
tion on the jobsite. Ebert said that transportation around
the site had to be by a teamster, that if a utility or "bull"
truck was used on the site, a teamster had to drive it, and
that the Engineers had jurisdiction over forklifts unless
used to circumvent the use of a "bull" truck.
After Ebert went through the prejob questionnaire, Daley
entered the room. Daley asked Ebert if he had told them
about the transportation coordinator. Ebert said yes,
although he had only mentioned it in introducing Street at
the outset of the meeting. Daley also asked Ebert if he had
told them about providing a vehicle for the transportation
coordinator. Ebert again replied affirmatively although he
had not previously said anything about it.
Daley then reviewed the prejob questionnaire which
Ebert had filled out. When he came to Maggiolo's name as
the excavating contractor, Daley said that Maggiolo was
unacceptable but did not give a reason. He also commented
that Dynacrete was nonunion but added that Dynacrete
should be checked further. Daley said that if the Company
put Pshonick on the job Respondent would picket, and
Ebert also said the same thing. They said, "Not a wheel will
turn. Nothing will move."
There was some discussion of when the job would start,
and Cullison said that the groundbreaking was tentatively
set for August 27. Respondent's representatives raised the
matter of the employment of the transportation coordinator
or Teamsters steward on the job.4 Culhson asked what he
was supposed to do. Daley and Ebert said he would check
trucks coming on the job to see that they had union drivers
and would see that the interests of the Teamsters were
protected in work assignments. Cullison said that he didn't
care what the transportation coordinator did for Respon-
dent but wanted to know what he would do for Nezelek,
Inc. Street volunteered that he could go out for coffee, and
one of the others said he could go to Binghamton to get
plans, but no other functions were mentioned. Cullison
made no further response at the time.
Toward the end of the meeting Street was sent to the next
room to get an order form for tickets for a dinner dance
sponsored by Respondent and for an advertisement in the
program. Upon Street's return, Daley handed Cullison four
copies of the Heavy Construction agreement which had
been signed by Ebert with Daley's name.5 Cullison said that
he was not authorized to sign it and had no reason to
because Nezelek, Inc., did not employ Teamsters, but that
he would take the contract to Edward Nezelek. Daley sent
Street for an envelope and the contracts were put in it for
Cullison to take with him.
The meeting broke up at this point. As Cullison was
leaving the room, Ebert approached him and told him not
to worry about using Maggiolo because Daley was only
trying to put pressure on Maggiolo who was slow with his
welfare payments. Ebert also told him to be sure to buy
tickets for the dinner dance because it was a pet project of
Daley's.
Respondent's witnesses testified, contrary to the above
findings, that discussion of the prejob questionnaire was
relatively brief and was followed by a lengthier page-by-
page review of the Heavy Construction agreement, during
which Cullison agreed to hire a Teamsters steward after a
number of duties were described which he would perform
for Nezelek, Inc. According to them, Cullison agreed orally
to all the terms of the Heavy Construction agreement but
stated that he lacked authority to sign it and would take it
back and have Company President Nezelek sign it. Ebert
and Street testified that a starting date of September 2 for
the Teamsters steward was established and that Street was
identified as the man for the job. Ebert testified that as the
conference was breaking up and after Cullison had agreed
to hire the transportation coordinator, Cullison privately
questioned Ebert as to whether, Respondent could send
someone other than Street to the job, voicing concern
because Street was black.
Although Respondent contended in oral argument that it
was unnecessary to decide whether Cullison privately
objected to the employment of Street because of his color,
the alleged raising of that objection by Cullison is an
integral part of Respondent's version of the events and the
only explanation offered for the claimed repudiation by
Nezelek, Inc., of agreements reached at the meeting. That
alleged repudiation goes to the heart of the issue as to the
object of the picketing which later took place. The
credibility of Ebert, Respondent's principal witness, as to
Culhson's alleged objection to Street reflects strongly on the
credibility of his entire version of the events and of
Respondent's other witnesses and must be determined.
Ebert gave an affidavit to an investigator for the General
Counsel in connection with the investigation of a charge
filed by Respondent against Nezelek, Inc., alleging a
violation of Section 8(a)(5). The affidavit was given on
October 7, several days after the charges in the instant case
were filed and 1 day after return receipts show that they
were received by Respondent. In the affidavit, Ebert made
no mention of his alleged private discussion with Culhson
about Street as the meeting was breaking up. At the hearing
Ebert gave four explanations for this omission: (1) that
Street was present when he gave the affidavit and he
refrained from mentioning Cullison's private statement to
him out of consideration for Street's feelings; (2) that Ebert
was actively trying to resolve the matter and did not think it
would come to "this"; (3) that he wouldn't say that he
didn't mention Cullison's statement to the investigator in
general terms and noticed that several things were left out
of the written statement when he read it before signing it
but felt that the written statement went to the substance of
the 8(a)(5) charge; and (4) that he did not believe the
4 The two terms are used interchangeably signing of the agreement by Daley raises some question as to the accuracy
5 All of the General Counsel's witnesses testified that they had initially of their observations, I am persuaded by the circumstances as a whole that
believed Daley had signed the agreements but conceded to varying extent they, rather than Respondent's witnesses, remained more accurate in their
that they must have been wrong after the hearing in the 10(1) proceeding description of the conference.
brought in conjunction with this case Although their initial version of the
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affidavit was in response to the charges against Respond-
ent.
Ebert's first explanation for the omission is inconsistent
with Ebert's third explanation that he mentioned it in
general terms to the investigator but that it was overlooked,
and his other explanations do not withstand scrutiny.
Although a copy of Respondent's charge against Nezelek,
Inc., was not placed in evidence, it is clear that Nezelek's
alleged refusal to sign the Heavy Construction agreement
after allegedly agreeing to it orally was central to the
charge. Over a third of Ebert's affidavit is devoted to a
detailed description of the August 18 meeting. Moreover,
while Ebert testified that the affidavit related only to the
charge filed by Respondent, the affidavit covers in detail
Ebert's subsequent conversations with Nezelek concerning
the hiring of the coordinator and the signing of the
contract, as well as the picketing and its objects. I am
satisfied from reading the affidavit as a whole that Ebert
did not omit any reference to Cullison's alleged objection to
Street for any of the reasons stated by him at the hearing.
There is further reason to be skeptical of Ebert's version.
Although Ebert initially testified, contrary to Culhson, that
he did not introduce Street as the teamster on the job at the
outset of the meeting, his testimony as to the discussion of
the duties of the transportation coordinator, as well as that
of Daley, Raskin, and Street makes it clear that the duties
were discussed in terms of what Street would do on the job.
According to them, at that time Cullison agreed to the
employment of the transportation coordinator. If Culhson
in fact had reservations over putting Street on the job, it is
less likely that Cullison would have readily agreed to hire
the transportation coordinator and later expressed his
reservations than that he simply would have remained
noncommittal as he testified he did for other reasons.6
There is a further glaring deficiency in the testimony of
Ebert and Street as to the date allegedly agreed upon for
Street to start on the job. According to Ebert, he preferred
to have Street start on the job earlier than September 2
because Maggiolo was starting on August 27, but he
discussed with Cullison the fact that September 1 was a
holiday. Ebert testified that Cullison asked if Street could
start on September 2, and Ebert conceded that Street could
start then without being paid for the holiday. The prejob
questionnaire identified by Ebert as that filled out by him
during the meeting bears the following notations which
Ebert testified he made at the time, "Maggiola will start
first. Street will start 9/2/70." Street testified similarly,
stating that it was definitely established that he was to start
the day after Labor Day. Street also testified that he met
Ebert the day after Labor Day and was told that they would
have to put up a picket the next day. All witnesses agreed
that the picketing started on September 3. Yet reference to
a 1970 calendar shows that September 1, 1970, occurred on
a Tuesday, and Labor Day, a Monday, was on September
7. While this discrepancy was not pointed out at the hearing
and neither witness was asked to explain it, the reference to
the holiday in connection with the alleged reason the date
was chosen, the note on the prejob conference form, and
the second reference to Labor Day in connection with the
date the picketing started leave any persuasive explanation
beyond imagination. As will be seen below, also, Ebert's
version of his conversation with Edward Nezelek on August
27 after this meeting also reflects upon this testimony that a
date was fixed for the employment of Street during the
August 18 conference.
There are other discrepancies in the testimony of
Respondent's witnesses as well . Thus, Daley testified that
during the conference Ebert came to his office, told him
that everything had been agreed to, and asked him to come
in to the conference. However, although all witnesses
testified that Street left the room dunng the conference, no
other witness testified that Ebert left at any time before the
conference ended, and Ebert's explanation of why he
signed Daley's name to the agreement is inconsistent with
Daley's version of how he happened to come to the room.
According to Ebert, during the conference Cullison said
that Nezelek, Inc., would use a utility or "bull" truck on the
job to move concrete forms, and Daley and Raskin
described similar discussions. Daley testified that he made
a note on the prejob questionnaire regarding a conversation
the others had previously had about a "bull" truck. Yet, in
the prejob questionnaire, there is no notation as to the use
of trucks by Nezelek, Inc., but at the bottom of page 2 the
words "fork lift" were written in handwriting identified by
Ebert as Daley's. The questionnaire filled out by Ebert and
Daley thus gives greater support to Culhson's version of
what he said rather than to that of Respondent's witnesses.7
Although Ebert, Raskin, and Street generally denied that
any objection was raised to the use of Maggiolo during the
meeting, Daley's testimony in this regard comes closer to
that of Cullison's than to the testimony of Respondent's
other witnesses.
For all of these reasons, I have concluded that the
testimony of Respondent's witnesses as to the August 18
meeting cannot be credited. In accepting Cullison's
contrary version I have considered the fact that there are
also some variations in the testimony of Cullison, Hiller,
and Bhendari but find them less consequential, and with
one exception, simply the expected variations of recollec-
tion of what was said during an hour long conference which
do not detract from the accuracy of the testimony. The one
exception relates to Hiller's testimony that during the
meeting Respondent threatened to picket the job if
Nezelek, Inc., did not hire the transportation coordinator
and sign the agreement. No one else testified to such a
threat at this time and I find that it was not made.
6 In this connection, I have noted the testimony of Ebert and Street that
some weeks later after Street had several times asked Ebert why Nezelek,
Inc, wouldn't hire him, Ebert told Street it was because of his color and
told him of his alleged conversation with Cullison. Street testified with
considerable emotion in this regard and I am convinced that the emotion
was genuine However, while Ebert may later have given this explanation
to Street, I do not believe on the evidence before me that Cullison objected
to Street on August 18 because of his color
7 In this connection, I have considered information produced at
Respondent's request as to the dates various subcontracts were let which
Respondent contends would show that after the August 18 meeting,
Nezelek, Inc., subcontracted certain work to avoid the need for having its
own truck on the job But it is clear from Respondent' s witnesses' version
of the prejob conference , as well as the testimony of the other witnesses,
that Nezelek, Inc, at all times material intended to subcontract most of the
work, and I find nothing in the information produced to support
Respondent's contention.
LOCAL 445, TEAMSTERS 583
In crediting Cullison, as corroborated by Hiller and
Bhendan, I have considered Respondent's contention that
it is unlikely that Respondent would have asked Cullison to
sign the agreement without first discussing its terms.
However, Respondent had previously sent a copy of the
agreement to Nezelek, Inc., and in its initial letter to
Nezelek, Inc., Respondent made a similar request and did
not describe the prejob conference as for the purpose of
negotiating an agreement. I do not find it unlikely that in
this industry and in the circumstances of this case,
Respondent asked Cullison to sign the agreement without
first discussing its terms.
In resolving the credibility issues, I have also considered
the denial by Respondent' s witnesses that any threat to
picket was made if Nezelek, Inc., used Pshomck as the
concrete supplier. Although there is evidence that Pshon-
ick's drivers were members of.Respondent, that Pshonick
paid benefits required by Respondent's agreement when
working on union jobs, and that Pshonick had worked on
other union jobs without being picketed, the evidence also
shows that Pshomck had not signed an agreement with
Respondent for some years, and that on August 27, Ebert
made further efforts to induce Nezelek, Inc., to buy its
concrete from another source. I am not satisfied that
Respondent's concern stemmed simply from fear that
Pshonick was not equipped to handle the job as its
witnesses testified, and have credited Cullison, Hiller, and
Bhendari in this respect also.
3. The August 27 meeting between Ebert and
Edward Nezelek
Ebert met Edward Nezelek, president of Nezelek, Inc., at
a restaurant in Monticello, New York, on August 27. Ebert
asked who was going to supply the concrete on the job, and
Nezelek said he planned to use Pshomck. Ebert asked what
was wrong with Sullivan County Redi-Mix. Nezelek said
that nothing was wrong except that their price was too high.
Ebert asked what Nezelek would say if Sullivan County
Redi-Mix gave him a price of $20.50 a yard. Nezelek said
that would be pretty good and that was the price Pshonick
wanted. Ebert then asked Nezelek if he would be willing to
talk to someone from Sullivan County Redi-Mix, and
Nezelek said that he would. Ebert asked Nezelek if he knew
that Pshonick was nonunion. Nezelek said that he did not
know that and understood that Pshomck paid Respondent
its benefits. Ebert said nothing further about whether
Nezelek, Inc., could use Pshonick, and left.
After several minutes, Ebert returned with Ivan Strauss, a
representative of Sullivan County Redi-Mix. They dis-
cussed concrete prices, but Nezelek did not agree to use
Sullivan County Redi-Mix as the concrete supplier. Strauss
left, and Ebert asked Nezelek what he was going to do for
him. Nezelek said he thought that he had just done
something by considering the use of Sullivan County Redi-
Mix. Ebert said that Nezelek knew what he meant, that
Nezelek was going to have to sign an agreement with
Respondent, and that he was going to have to employ a
transportation coordinator. Nezelek said he had no work or
use for a transportation coordinator, that he didn't see any
reason why he should hire one, and that he didn't intend to
sign a contract. Ebert said that if Nezelek didn't, there
would be no wheels turning on the job. At that point their
meeting ended.
These findings are based on the testimony of Nezelek
which I have credited. Although an affidavit and complaint
filed in a state court proceeding were offered as inconsistent
with Nezelek's testimony, I find nothing in them inconsis-
tent with his testimony. Ebert's version of this conversation
differed sharply from Nezelek's. According to Ebert,
Nezelek not only agreed to use Sullivan County Redi-Mix
as the concrete supplier on the job, but after Ebert
straightened out some misunderstandings Nezelek had with
respect to the transportation coordinator, Nezelek also
agreed that Ebert's man would start on the job the next
week. Ebert also testified that nothing was said about the
agreement and he did not ask Nezelek to sign it. I find it
impossible to believe, as Ebert testified, that Cullison
agreed to hire a transportation coordinator on August 18
during the meeting, that Cullison then voiced objection to
Street as the man because of his color, that Nezelek on
August 27 raised different objections but then agreed to
hire a transportation coordinator without mentioning
Street, and that then on September 2 Nezelek refused to
hire a transportation coordinator first raising a question as
to whether it had to be Street. In rejecting Ebert's
testimony, I also note that in his version of the August 27
conversation no reference was made to Cullison's alleged
prior agreement to put Street to work on September 2.
4. The September 2 conversation between Ebert
and Nezelek
On September 2, in the late afternoon, Ebert went to the
jobsite and asked Hiller if Nezelek was there. Hiller said
that he was not but telephoned Nezelek at his office so that
Ebert could speak with him. Ebert asked Nezelek if he was
going to hire the transportation coordinator and sign the
agreement. Nezelek said that he was not, and Ebert said
that there would be pickets on the job the following
morning.
Again I have credited Nezelek. Ebert testified that in this
conversation he first asked when Street would start, and
Nezelek asked if Ebert was still going to send that man.
According to Ebert, he said that was right and it couldn't be
any different, and Nezelek said he was not going to put that
man to work. Ebert testified that they then discussed what
was legal and what was not, and Nezelek asked something
about signing the agreement to which Ebert replied that
Nezelek would have to sign it. Although there is some
reason to believe from Nezelek's affidavit and complaint in
the state court proceeding that there was some discussion of
propriety and legality, I credit Nezelek's version as an
accurate summary of the conversation. In his affidavit
described above Ebert described this conversation without
mentioning that Nezelek made any objection to Street as an
individual, and I do not credit Ebert that Nezelek asked
Ebert if he was still going to send "that man."
5. The picketing and its effects
On the morning of September 3, Street came to the
jobsite and picketed at its entrance with a sign stating that
Nezelek, Inc., was unfair to Local 445. Pickets were at the
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobsite daily thereafter until December 2, when they were
removed following the signing of a court order.
On September 2 Maggiolo was the only subcontractor at
work at the site. At that time Maggiolo had a superintend-
ent and a bulldozer operator at the jobsite. They had
worked at the site since the groundbreaking ceremony on
August 27. On September 3, they did not report for work on
the job, although scheduled to work, and have not reported
for work since. On September 3, Street observed that
Maggiolo's superintendent rode past the picket line, looked
at the sign, and kept going. On September 8, Hiller called
Maggiolo to ask why his men were not at work, and
Maggiolo stated that he could not move any equipment on
the job as long as the pickets were there, but would return
when they left. Maggiolo's work was the first work
scheduled to be performed on the job, and the initial
excavation had to be completed before other phases of the
work could proceed.
On September 18, Cullison met with Ebert, and Ebert
again told him that Nezelek, Inc., would have to hire the
transportation coordinator and sign an agreement . Cullison
again refused.8
According to Ebert and Street, Ebert instructed Street
not to stop anyone from entering thejobsite. It appears that
after the picketing started Pshonick entered the site to
deliver some paperwork connected with his purchase order
and test samples, that public utility employees came to the
site and performed work, that some deliveries were made to
the site, and that a Maggiolo employee came to the site to
remove its bulldozer.9
B. Concluding Findings
1. The alleged violation of Section 8(b)(7)(C)
Section 8(b)(7)(C) makes it an unfair labor practice for a
labor organization to picket any employer (1) if an object of
the picketing is forcing or requiring the employees of an
employer to accept or select such labor organization as
their collective-bargaining representative, (2) if such labor
organization is not currently certified as the representative
of such employees, and (3) if such picketing has been
conducted without a petition under Section 9(c), being filed
within a reasonable time not to exceed 30 days from the
commencement of the picketing. Section 8(b)(7)(C) is not
violated, however, by picketing or other publicity for the
purpose of truthfully advising the public, including
consumers, that an employer does not employ members of,
8 Cullison's testimony as to this meeting was not denied
9 According to Street an electrical subcontractor also visited the job.
However, Hiller testified that no subcontractors came to the job after the
picketing started
10 Ebert stated the same purpose in his affidavit discussed above. At
one point during the hearing Respondent took a somewhat different
position contending that the purpose of the picketing was only to compel
Nezelek, Inc, to hire Street in accord with its alleged prior agreement, and
that it did not seek by its picketing to compel Nezelek to sign the
agreement because once Street was hired it would have to sign the
agreement Respondent seems to have abandoned that position
u Local 542, International Union of Operating Engineers, AFL-CIO (R
S. Noonan, Inc), 142 NLRB 1132, enfd 331 F.2d 99 (C.A. 3), cert denied
379 U S 889 Here the argument for finding a proscribed object is even
stronger than in Noonan, for Respondent was also seeking to compel
Nezelek , Inc, to hire Street at the same time that it sought to compel it to
or have a contract with, a labor organization, unless an
effect of the picketing is to induce any individual employed
by any other person in the course of his employment not to
perform any services.
Nezelek, Inc., has never employed drivers, Respondent is
not certified as the representative of any of the employees
of Nezelek, Inc., and no petition was filed within 30 days of
the start of the picketing.
The General Counsel contends that a purpose of the
picketing was to compel Nezelek, Inc., to sign the Heavy
Construction agreement and that such purpose established
the object,proscribed by Section 8(b)(7). Respondent in its
beef contends that the object was not prohibited because
the sole objective of the picketing "was because Nezelek
refused to employ a member of respondent union who it
had previously agreed to hire and because Nezelek refused
to execute an agreement with respondent after recognizing
respondent , negotiating said agreement and agreeing to all
of its terms and conditions." io
I have not credited the evidence offered by Respondent
to establish that Nezelek, Inc., agreed to hire Street or sign
the agreement before the picketing started and find that
there was no such agreement. The evidence is clear that
objects of the picketing were to compel Nezelek, Inc., to
hire Street and to sign the agreement. These objects are
established by Ebert's conversations with Nezelek on
August 27 and September 2 and Ebert's conversation with
Cullison on September 18. While Nezelek, Inc., employed
no drivers at the time and had no intention to hire them,
picketing to compel Nezelek, Inc., to sign the agreement
nonetheless falls within the object proscribed by Section
8(b)(7)•"
Respondent has not contended that its picketing was
exempted from the reach of Section 8(b)(7)(C) as informa-
tional, and the evidence would not support such a claim.
The sign carved at -the jobsite failed to inform or advise
anyone that Respondent did not employ members of
Respondent or had no contract with Respondent, but
simply stated that Nezelek, Inc., was unfair to
Respondent.12 Moreover, it appears that the picketing
caused Maggiolo's employees to stop work at the site.13
While there were only two individuals employed by
Maggiolo then at work at the site , the completion of
Maggiolo's work then in progress was necessary to the start
sign the contract.
12 Local 542, International Union of Operating Engineers, AFL-CIO (R
S Noonan, Inc), supra
13 In this connection, Respondent asked to have all correspondence
between Nezelek, Inc., and Maggiolo produced for the purpose of showing
that Maggiolo left the site and did not return for reasons unrelated to the
picketing. Although the correspondence, which was received after the close
of the hearing, shows that Maggiolo's failure to return to the site after the
end of the picketing may have been related to a dispute over the terms of
its subcontract, which was not signed before the picketing started , nothing
in it indicates that such a dispute existed at the start of the picketing or
while it continued, and indeed Ebert's affidavit describes conversations
between Ebert and Maggiolo and his superintendent from which it is clear
that Ebert understood that Maggiolo's absence from the job was due only
to the picketing, contrary to Ebert's testimony at the hearing
LOCAL 445, TEAMSTERS 585
of other phases of the work, and the picketing substantially
disrupted work at the job.14
I find that the picketing by Respondent at the jobsite
violated Section 8(b)(7)(C) of the Act.
2. The alleged violations of Section 8(b)(4)
The complaint alleges that Respondent also violated
Section 8(b)(4)(i) and (ii)(A) by picketing to compel signing
of the Heavy Construction agreement because it contains
the following clauses alleged to be prohibited by Section
8(e) of the Act.
Article VIII-Employee Rights
The Employer shall not discharge or suspend or
otherwise discipline any Employee for refusing to cross
a picket line, and such refusal shall not be considered a
violation of this Agreement.
Article XI-Sub-contracting
A. The prime contractor, subletting any portion of
a job or work on a job site, shall, as a condition
preceding such subletting, require the sub-contractor to
meet with the representatives of the Union for the
purpose of complying with the provisions of this
Agreement for such work.
B. When said job or any portion is subcontracted,
the prime contractor shall see that the Employees of
said sub-contractor receives the wages, hours, condi-
tions and FRINGES as outlined in this Agreement by
the Sub-Contractor, or the prime contractor shall be
responsible for said payment of wages, conditions,
hours and fringes himself.
C. Failure on the part of the sub-contractor to meet
with the Union and sign an Agreement with this Union
covering such work, shall prohibit the prime contractor
from subletting such work to that contractor.
D. If it is found that the sub-contractor is not
complying with the provisions of this Agreement, the
Union shall give the prime contractor forty-eight (48)
hours notice before any action is taken by the Union.
Failure on the part of the prime contractor to comply
with the terms of this provision will leave the Union free
to withdraw its employees until such time the terms and
conditions of this Agreement are complied with and
shall make the prime contractor responsible for all lost
wages and benefits as a result of such withdrawal.
Article VIII of the agreement is broad enough to apply to
secondary picketing having no connection with disputes
concerning jobsite subcontracting, and to that extent is
prohibited by Section 8(e) of the Act.15
While the restrictions on subcontracting provided in the
first three sections of article XI taken alone would appear
to fall within the construction industry exemption from
Section 8(e), section D permits enforcement of this article
by strike of the employees of the prime contractor and
makes the contractor responsible for wages and benefits
lost as a result of the strike. This self-enforcement feature
brings the subcontracting clause beyond the bounds of
construction industry proviso to Section 8(e).16
As I have found that Respondent picketed Nezelek, Inc.,
on and after September 3 to compel Nezelek, Inc., to sign
an agreement containing these clauses , I find that
Respondent thereby violated Section 8(b)(4)(i) and (ii)(A)
of the Act.17
The General Counsel contends further that Respondent
was attempting through the picketing to enforce the
subcontracting provisions as to off-site work, Pshonick's
delivery of ready-mix concrete, that the picketing further
violated Section 8(b)(4)(i) and (ii)(A) for that reason, and
that the picketing also violated Section 8(b)(4)(i) and ( ii)(B)
because another of its objects was to force Nezelek, Inc., to
cease doing business with Pshonick.
As I have found, there is evidence that on August 18,
Ebert and Daley threatened to picket if Nezelek, Inc., used
Pshonick as a concrete supplier. That threat violated
Section 8(b)(4)(ii)(B) of the Act.
Thereafter, when Ebert met with Nezelek on August 27,
he again attempted to persuade Nezelek to use Sullivan
County Redi-Mix. On that occasion, Ebert asked Nezelek if
he knew that Pshonick was nonunion. When Nezelek
replied that he did not know that and understood that
Pshonick paid benefits to Respondent, Ebert said nothing
further about Pshonick, and Pshonick was not discussed
again on that day or on September 2 when Ebert spoke to
Nezelek by telephone.
Nezelek, Ines purchase order to Pshonick was dated
September 2 and was signed by Pshonick on September 4.
There is no evidence to show that Respondent was aware
that Nezelek, Inc., had placed the order, although after
August 27 Ebert may well have believed that it would do so.
The only evidence of communication between Nezelek,
Inc., and Respondent after the picketing started shows that
when Cullison met with Ebert on September 18 the signing
of the contract and the hiring of Street were mentioned, but
nothing was said about Pshonick.
The question to be resolved is whether an object of the
picketing on and after September 3 was to compel Nezelek,
Inc., not to use Pshonick as a supplier. I have found above
that other objects of the picketing were to compel Nezelek,
Inc., to sign Respondent's agreement and to hire Street.
While I have found that the threats testified to by Cullison,
Hiller, and Bhendari were made on August 18, in view of
the subsequent events and the evidence that the picketing
had other clear independent objects, I am not persuaded
that a further object of the picketing was to compel
Nezelek, Inc., to cease doing business with Pshonick or that
the picketing violated Section 8(b)(4)(i) and (ii)(B) for that
reason.
14 Retail Clerks Union Local 324 and Local 770, Retail Clerks (Barker
Bros Corp), 138 NLRB 478, 491, affd . 328 F .2d 431 (C.A. 9). _
15 Hodcarriers ' and Construction Laborers' Union Local 300, etc . (Fiesta
Pools, Inc , and Universal Contractors, Inc.) 154 NLRB 1744, 1745, In. 7,
Los Angeles Building & Construction Trades Council, etc. (Quality Builders
Inc.), 153 NLRB 383
16 Muskegon Bricklayers Union #5, etc. (Greater Muskegon General
Contractors Association), 152 NLRB 360, enfd. as modified 378 F.2d 859
(C.A. 6); Los Angeles Building & Construction Trades Council, etc. (Quality
Builders, Inc.), 153 NLRB 383
17 See cases cited in fns. 15 and 16, supra.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with the operations of the
companies herein involved, described in section I, above,
have a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
activities which violate the Act, I shall recommend that it
be ordered to cease and desist therefrom and to take certain
affirmative action to effectuate the purposes of the Act.
The General Counsel requests that Respondent be
ordered in addition to remove articles VIII and XI from all
its collective-bargaining agreements and to notify all
employers with whom it has signed agreements to this
effect. In Local Union No. 141 of the Sheet Metal Workers,
International Association, etc. (Cincinnati Sheet Metal &
Roofing Company, A/K/A Ajax Company), 174 NLRB No.
125, enfd. 425 F.2d 730 (C.A. 6), cited by the General
Counsel, picketing involved enforcement of provisions of
an existing association agreement, and the Board ordered
the respondent to notify the association and contractors
that it would not maintain or insist upon inclusion of the
violative provisions in any agreement. In Southern Califor-
nia District Council of Hod Carriers, etc. (Swimming Pool
Gunite Contractors Group), 158 NLRB 303, also cited by the
General Counsel, the Board found that the respondent had
unlawfully insisted upon inclusion of certain clauses in an
agreement and that the employers under protest had signed
agreements including these clauses.18 Here Nezelek, Inc.,
did not sign the agreement, and the complaint does not
allege maintenance or enforcement of the challenged
provisions in agreements between Respondent and other
employers. Accordingly, I reject this request of the General
Counsel.19
CONCLUSIONS OF LAW
1. Edward L. Nezelek , Inc., and I. Pshonick & Son are
employers engaged in commerce or in an industry affecting
commerce within the meaning of Section 2 (2), (6), and (7)
of the Act.
2. - Local 445 , International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By picketing at the Sullivan County Community
College construction jobsite of Edward L. Nezelek, Inc.,
since on or about September 3, 1970, with an object of
forcing or requiring Nezelek , Inc., to recognize or bargain,
with it as the representative of its employees , without being
18 See the earlier decision of the Board in the same case reported at 144
NLRB 978
19 See Los Angeles Building & Construction Trades Council, etc. (Quality
Builders, Inc), 153 NLRB 383, Los Angeles Building & Construction Trades
Council, etc (Portofino Marina), 150 NLRB 1590.
20 In the event no exceptions are filed as provided by Section 102 46 of
currently certified as the representative of such employees
and without filing a petition under Section 9(c) within a
reasonable period of time, Respondent engaged in unfair
labor practices within the meaning of Section 8(b)(7)(C) of
the Act.
4. By picketing at the construction jobsite of Edward L.
Nezelek, Inc., with an object of forcing Nezelek, Inc., to
enter into an agreement which contained clauses unlawful
under Section 8(e), Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i) and
(ii)(A) of the Act.
5. By threatening that Respondent would picket
Edward L. Nezelek, Inc., if Nezelek, Inc., used I. Pshonick
& Son as the concrete supplier on its construction job, with
an object of forcing or requiring Nezelek, Inc., to cease
doing business with Pshonick, Respondent has engaged in
unfair labor practices within the meaning of Section
8(b)(4)(ii)(B) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended: 20
ORDER
Respondent Local 445, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, representatives, and agents, shall:
1. Cease and desist from:
(a) Picketing or causing to be picketed, or threatening to
picket or cause to be picketed, Edward L. Nezelek, Inc.,
where an object thereof is forcing or requiring said
employer to recognize or bargain with it as the representa-
tive of its employees in violation of Section. 8(b)(7)(C) of the
Act.
(b) Engaging in, or inducing or encouraging any
individual employed by Edward L. Nezelek, Inc., or any
other employer to engage in, a strike or refusal in the course
of such individual's employment to use or handle any
materials or to perform any services, or threatening,
coercing, or restraining Edward L. Nezelek, Inc., or any
other employer, by a strike or picketing, where in either
case an object thereof is to force or require Edward L.
Nezelek, Inc., to enter into any agreement which is
prohibited by Section 8(e) of the Act.
(c) Threatening, coercing, or restraining Edward L.
Nezelek, Inc., or any other employer, where an object
thereof is to force such employers to cease doing business
with I. Pshonick & Son.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix." 21 Copies of said
notice, on forms provided by the Regional Director for
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and Recommended Order herein shall, as provided
in Section 102 48 of the Rules and Regulations , be adopted by the Board
and become its findings , conclusions, and order, and all objections thereto
shall be deemed waived for all purposes.
21 In the event that the Board's Order is enforced by a Judgment of a
LOCAL 445, TEAMSTERS
Region 3 , after being duly signed by Respondent's
authorized representative , shall be posted by it immediately
upon receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to members are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Sign and mail sufficient copies of said notice to said
Regional Director for posting by Edward L. Nezelek, Inc.,
1. Pshonick & Son, and Maggiolo Corporation , if willing, at
all places where notices to its employees are customarily
posted.
(c) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision , what steps
have been taken to comply herewith.22
United States Court of Appeals , the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
22 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read
"Notify the Regional Director for Region 3, in writing, within 20 days from
the date of this Ordei , 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 picket or cause to be picketed Edward
L. Nezelek, Inc., with an object of forcing or requiring
Nezelek, Inc., to recognize or bargain with us as
587
representative of its employees in circumstances
violative of Section 8(b)(7)(C) of the Act.
WE WILL NOT engage in, or induce or encourage any
individual employed by Edward L . Nezelek , Inc., or any
other employer, to engage in, strikes or refusals in the
course of their employment to use or handle any
materials or to perform any services , and WE WILL NOT
threaten, coerce, or restrain Edward L . Nezelek, Inc., or
any other employer , by a strike or picketing, where in
either case an object thereof is to force or require
Edward L. Nezelek , Inc., to enter into any agreement
prohibited by Section 8(e) of the Act.
WE WILL NOT threaten, coerce , or restrain Edward L.
Nezelek , Inc., or any other employer , where an object
thereof is to force or require such employer to cease
doing business with I . Pshonick & Son.
Dated By
LOCAL 445, 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 compliance with
its provisions may be directed to the Board 's Office, Fourth
Floor, The 120 Building , 120 Delaware Avenue, Buffalo,
New York 14202 , Telephone 716-842-3100.