Los Angeles Bldg. & Const. Trades Council

National Labor Relations Board - Board Decisions

Jan 27, 1975

216 N.L.R.B. 307 (N.L.R.B. 1975)

LOS ANGELES BLDG. & CONST. TRADES COUNCIL 307
Los Angeles Building & Construction Trades Council,
AFL-CIO and Silver View Associates and John G.
Jellifie and J . D. Benefield d/b/a Windsor Road
Associates d/b/a Silver View Associates. Cases
31-CC-471 and 31-CC-480
January 27, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
The consolidated amended complaint in the matter
based upon charges filed on January 16, 1974, by
John G. Jelliffe and J. D. Benefield d/b/a Windsor
Road Associates d/b/a Silver View Associates
(hereinafter called the Charging Party or Silver
View), against Los Angeles Building & Construction
Trades Council, AFL-CIO (hereinafter called Re-
spondent), in Case 31-CC-471 and on February 26,
1974, in Case 31-CC-480, issued on March 12, 1974.
In substance, the complaint alleges that Respondent
violated Section 8(b)(4)(i) and (ii)(B) of the National
Labor Relations Act, as amended, by picketing
construction projects when the primary employer
was not at the projects with the intent of enmeshing
the neutral subcontractors in the dispute.
Respondent's answer admits certain factual allega-
tions of the complaint, but denies the commission of
any unfair labor practices.
On April 11, 1974, the parties entered into a
stipulation wherein they agreed that certain docu-
ments , including the charge, complaint, and joint
stipulation, shall constitute the entire record herein,
expressly waived all intermediate proceedings before
an Administrative Law Judge, and submitted the
case directly to the Board for its decision and order,
reserving to themselves the right to file briefs. On
April 19, 1974, the Board approved the stipulation,
ordered transferral of the proceedings to the Board,
and granted permission to the parties to file briefs.
Thereafter, briefs were filed by General Counsel and
Respondent.
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 entire record herein
and the briefs and makes the following:
FINDINGS OF FACT
I. BUSINESS OF THE EMPLOYER
Silver View, a partnership , is engaged as an owner-
builder in the building and construction industry.
During the past calendar year , Silver View purchased
216 NLRB No. 55
goods and materials valued in excess of $50,000 from
suppliers within the State of California who received
the goods and materials in substantially the same
form directly from points located outside the State of
California. During the past calendar year, Silver
View purchased in excess of $100,000 worth of
lumber. The parties stipulated, and we find, that
Silver View is, and at all times material has been, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. RESPONDENT'S STATUS AS A LABOR
ORGANIZATION
The parties stipulated , and we find , that the
Respondent , Trades Council, is now, and at all times
material has been , a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. The Stipulated Facts
The Charging Party has been engaged in the
construction of two apartment buildings in Los
Angeles, California (hereinafter called the Michelto-
rina Street project and the Hyperion Avenue pro-
ject), and has subcontracted various aspects of the
work to several contractors. Respondent has been
engaged in a labor dispute with the Charging Party
concerning wages, hours, and working conditions. At
no time material has Respondent had any dispute
with any of the subcontractors at the projects. In
furtherance and support of the above dispute, it
demanded that the Charging Party recognize and
bargain with Respondent over the subcontracting of
jobsite work. Beginning on or about January 16,
1974, and continuing to on or about February 1,
1974, Respondent picketed at the Micheltorina Street
project and, beginning on or about January 18, 1974,
and continuing to on or about February 1, 1974,
Respondent picketed at the Hyperion Avenue
project with signs whose legend at each project read:
Silver View Associates Unfair to Los Angeles
Building and Construction Trades Council,
AFL-CIO No Agreement
The owner-partners of the Charging Party spend,
collectively, about 16 hours per week at the Michel-
torina Street project and 6 hours per week at the
Hyperion Avenue project coordinating work between
the various contractors and generally seeing if the
materials are adequate and how the jobs are
progressing. At all times material, the Charging Party
has had no employees, supervisors, representatives,
office, shed, or equipment at the projects or any
other "presence" except for a trailer on the Michelto-
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rina Street project for use by the subcontractors. At
the time Respondent engaged in picketing as
described above, the Charging Party had no employ-
ees working at the projects or any other presence
except as described above. Due to Respondent's
picketing of the projects, all work at the projects
ceased as all subcontractors or employees of the
subcontractors refused to perform work.
B. Positions of the Parties
General Counsel contends that Respondent's
picketing violated Section 8 (b)(4)(i) and (ii)(B) of the
Act which prohibits a union or its agents from
bringing pressure to bear upon a "primary" employer
(here Silver View) through secondary employers
(here Silver View's subcontractors), in furtherance of
a labor dispute with the primary employer.
Respondent contends that it is immaterial whether
the primary employer had employees on the jobsites,
since at all times its dispute with the primary
employer concerned the subcontracting of jobsite
work and was not designed to appeal to employees of
the primary employer.
C. Discussion and Conclusion
General Counsel argues that Respondent, by its
picketing, intended to force cessation of business by
the neutral subcontractors in violation of Section
8(b)(4)(i) and (ii)(B) of the Act. We agree. Respond-
ent, in our opinion, failed to conform to the Board's
Moore Dry Dock 1 criteria since the picketing did not
occur when the primary employer was engaged in its
normal business at the situs of the dispute.
Section 8(b)(4) of the Act makes it an unfair labor
practice for a union:
(i) to engage in, or to induce or encourage any
indivudual . . . to engage in, a strike or a refusal
in the course of his employment to use, manufac-
ture, process, transport, or otherwise handle or
work on any goods, articles , materials , or com-
modities or to perform any services; or (ii) to
threaten, coerce, or restrain any person .. .
where in either case an object thereof is:
(B) forcing or requiring any person to
cease using, selling, handling, transporting,
or otherwise dealing in the products of any
other producer, processor, or manufacturer,
i Sailors' Union of the Pacific, AFL (Moore Dry Dock Co), 92 NLRB 547
(1950)
2 General Teamsters, Warehouse and Dairy Employees Union Local No.
126, affiliated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local # 139, etc. (Ready Mixed
Concrete, Inc), 200 NLRB 253 (1972), N L.R B v. Denver Building and
or to cease doing business with any other
person, . . .: Provided, That nothing con-
tained in this clause (B) shall be construed to
make unlawful, where not otherwise unlaw-
ful, any . . . primary picketing ... .
A union is permitted to picket a primary employer
with whom it has a labor dispute but runs afoul of
Section 8(b)(4) if it pickets or threatens to picket a
neutral employer for the proscribed object of
enmeshing the neutral employer in a controversy not
its own. The law is clear that it is unnecessary to find
that the sole object of picketing is unlawful; an
unlawful object is enough.2
The criteria set forth in Moore Dry Dock are to
assure that common situs picketing, to be lawful, is
conducted in a manner that clearly indicates that the
appeal of the picketing is directed only to the
employees of the primary employer, and employees
of its suppliers. The Board and the courts uniformly
have held that picketing at a common situs violates
Section 8(b)(4)(i) and (ii)(B) of the Act if any of the
requirements of Moore Dry Dock are disregarded or
if the picketing is in any respect conducted in a
manner which demonstrates that the intent and
purpose of the picketing is to appeal to the employees
of secondary employers.3
In its Moore Dry Dock decision, the Board evolved
the following tests for determining the legal status of
picketing at the so-called common sites : (1) Picketing
must be limited to times when the primary employ-
er's employees are actually present at the common
site ; (2) picketing must be limited to "places
reasonably close" to the operations of the primary
employer's workers ; (3) the picket signs must show
clearly that the dispute is with the primary employer
alone ; and (4) the primary employer's workers must
be engaged in the company's normal business.
Applying these standards to the Respondent's
picketing, we are persuaded that picketing at the
construction projects here involved was not conduct-
ed in a manner inhibited by "restraint consistent with
the right of neutral employers to remain uninvolved
in the dispute."4 The primary employer was not
engaged in its normal business at the situs picketed.
Silver View employs no construction employees or
supervisors ; it subcontracts out all of its construction
work. Thus, the Charging Party is engaged in its
normal business only at its office rather than the
common site where all the construction work is
performed by the Employer's subcontractors. In view
Construction Trades Council [Gould & Preisner], 341 U.S. 675 (1951).
3 Ready Mixed Concrete, supra.
4 Retail Fruit Qi Vegetable Clerks Union, Local 1017 and Retail Grocery
Clerks Union, Local 648, Retail Clerks International Association , AFL-CIO
(Crystal Palace Market), 116 NLRB 856, enfd . 249 F.2d 591 (C.A. 9, 1957).
LOS ANGELES BLDG . & CONST. TRADES COUNCIL 309
of these facts, Respondent's picketing cannot be of a
primary nature . We note that, although the stipulated
facts show that the owner-partners of the Employers
spend collectively about 16 hours per week at the
Micheltorina Street project and about 6 hours per
week at the Hyperion Avenue project, they do not
show, nor apparently does Respondent contend, that
the picketing was intended to take place only at times
when the owner-partners were present at the site. No
contention is even made , moreover, that Respondent
attempted to ascertain times when the owner-part-
ners would be present at these sites.
If picketing is directed at the primary employer, it
will be regarded as primary and lawful. But if
purposeful effort is made to direct it at the neutrals
that work at a common site , the activity will be
viewed as secondary and unlawful (Ready Mixed
Concrete, supra). Based on the above, we find that
Respondent 's picketing was secondary and unlawful.
Since picketing under these circumstances constitutes
"inducement or encouragement" of individuals
within the meaning of Section 8(b)(4)(i)(B) and
"coercion or restraint" of persons within the meaning
of Section 8(b)(4)(ii)(B), we find that Respondent, by
its above activity, violated both these sections as
alleged in the complaint.
CONCLUSIONS OF LAW
1. John G. Jelliffe and J. D. Benefield d/b/a
Windsor Road Associates d/b/a Silver View Associ-
ates is engaged in commerce within the meaning of
Section 2(6) of the Act.
2. Respondent , Los Angeles Building & Con-
struction Trades Council , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By inducing and encouraging individuals
employed by Pyramid Builders; Wilpac Plumbing;
Michael K. Ivanovich , an individual ; Haldane
Engineering Co.; Security Sheet Metal ; Allied
Ornamental Iron; C. R. Bell , an individual ; or other
persons engaged in commerce or in an industry
affecting commerce, to engage in a strike or refusal in
the course of their employment to use, manufacture,
process, transport , or otherwise handle or work on
any goods , articles, materials, or commodities or to
perform services ; and by threatening , coercing, and
restraining Pyramid , Wilpac, Ivanovich , Haldane,
Security, Ornamental , Bell, or other persons engaged
in commerce or in an industry affecting commerce
with an object of forcing or requiring the above
persons to cease doing business with Silver View
Associates, Respondent Los Angeles Building &
Construction Trades Council , AFL-CIO, has en-
gaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(4)(b)(i) and (ii)($) of
the Act.
4. The acts of Respondent described in the above
conclusion of law constitute unfair labor practices
affecting commerce within the meaning of Section
8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent Los Angeles
Building & Construction Trades Council, AFL-CIO,
has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8 (b)(4)(i) and
(ii)(B) of the Act, we shall order it to cease and desist
therefrom and to take such affirmative action as will
effectuate the purposes of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section
10(c) of the Act, we hereby issue the following:
ORDER
Respondent Los Angeles Building & Construction
Trades Council, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual em-
ployed by Pyramid Builders, Wilpac Plumbing,
Michael K. Ivanovich, an individual, Haldane
Engineering Company, Security Sheet Metal, Allied
Ornamental Iron, and C. R. Bell, or any other
persons engaged in commerce or in an industry
affecting commerce, to engage in a strike or a refusal
in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to
perform any services where an object thereof is to
force or require the said persons, or any other person,
to cease using , selling, handling, transporting, or
otherwise dealing in the products of, or to cease
doing business with, Silver View Associates.
(b) In any manner - threatening, coercing, or
restraining Pyramid Builders, Wilpac Plumbing,
Michael K. Ivanovich, an individual, Haldane
Engineering Company, Security Sheet Metal, Allied
Ornamental Iron, and C. R. Bell, an individual, or
any other persons engaged in commerce or in an
industry affecting commerce, where an object thereof
is to force or require said persons to cease using,
selling, handling, transporting, or otherwise dealing
in the products of, or to cease doing business with,
Silver View Associates.
2. Take the following affirmative action which it
is found will effectuate the policies of the National
Labor Relations Act, as amended:
310 DECISIONS OF NATIONAL LAIHOR RELATIONS BOARD
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."5 Copies of said
notice, on forms provided by the Regional Director
for Region 31, after being duly signed by its
authorized representative, shall be posted by Re-
spondent Los Angeles Building & Construction
Trades Council, AFL-CIO, immediately upon re-
ceipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Deliver to the Regional Director for Region 31
signed copies of said notice in sufficient number for
posting by Pyramid Builders, Wilpac Plumbing,
Michael K. Ivanovich, Haldane Engineering Compa-
ny, Security Sheet Metal, Allied Ornamental Iron,
and C. R. Bell, they being willing, at all locations
where notices to their employees are customarily
posted.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps the Respondent, Los Angeles Building &
Construction Trades Council, AFL-CIO, has taken
to comply herewith.
ACTING CHAIRMAN FANNING, dissenting:
I dissent from the majority's conclusion that
Respondent violated Section 8(b)(4)(i) and (ii)(B) of
the Act by picketing the Employer's projects. In my
opinion, Respondent met the tests enunciated in
Moore Dry Dock. The situs of the dispute obviously is
the situs of the construction work undertaken by
Silver View, The picketing took place at this situs at a
time when the Employer was engaged in business at
the project. The absence of employees or the owner-
builders does not mean that Silver View has ceased
doing business there. It is stipulated that the owner-
builders spent 22 hours each week at the sites. Until
and unless the projects are completed, sold, or
abandoned, Silver View is engaged in business at that
site.6
The totality of Respondent's conduct does not
demonstrate that the picketing had an unlawful
object. The signs carried by Respondent at the picket
line clearly limited the controversy to Silver View.
Obviously the picketing was as close to the situs of
dispute as was possible. Respondent sought to induce
Silver View to sign an agreement concerning the
subcontracting of jobsite work. It is this dispute and
lack of agreement that was specifically announced by
the picket signs. As I am satisfied that Respondent
clearly attempted to conform its picketing of Silver
View's project to the Moore Dry Dock tests, and was
successful in so doing, and as I am convinced,
moreover, that those tests amply serve to distinguish
picketing which merely serves to induce employees to
respect the picket line from picketing which is aimed
at inducing employees of neutral employers them-
selves to engage in a strike against the owner-
employer, I find that Respondent did not, by
engaging in picketing in conformity with those
standards, violate Section 8(b)(4)(i) or (ii) of the Act.
Nevertheless, even if Respondent's actions are
interpreted as direct appeals to the subcontractor's
employees, these were primary appeals under General
Electric.7 Clearly, the dispute was with Silver View
and the subcontractors were performing Silver
View's work. As the dissenting opinion of Member
Jenkins and myself in Markwell and Hartzs stated
"in view of the General Electric decision, we believe
that the Moore Dry Dock tests cannot be applied in a
manner which will bar primary appeals to employees
of employers whose operations are directly related to
the normal operations of the struck employer." It is
difficult to ascertain how the work of the subcontrac-
tors in the instant case could be more closely related
to the struck employers' operations. As stipulated by
the parties, Silver View, at all times material herein,
had no employees, supervisors, or representatives at
the projects; all construction work at the projects was
performed by the subcontractors. Accordingly, I
would hold that the work of the subcontractors failed
to meet the "unrelated work" condition. Since I find
that Respondent's picketing conformed to the Moore
Dry Dock standards , and since, in any event, I find
that Respondent's picketing consisted of primary
appeals to employees of employers performing
related work, I would dismiss the complaint in its
entirety.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
6 In Kennedy v. Los Angeles Building and Construction Trades Council, 66
LRRM 2650 (1967), the court held that there was no reasonable cause to
believe that a union violated Sec. 8(bX4Xi) and (iiXB) of the Act by
picketing construction projects of two general contractors with whom the
union had a labor dispute and therefore held that the Board's Regional
Director was not entitled to a temporary injunction . In facts substantially
identical to the facts in the instant case , the Los Angeles Building and
Construction Trades Council picketed the primary employers who had
subcontracted out all the construction work at their projects . The court held
that the construction projects were the situs of the dispute even though at
the time of the picketing neither contractor had employees working on the
projects and further found that the union's picketing conformed to the
standards promulgated in Moore Dry Dock.
7 Local 761, International Union of Electrical, Radio & Machine Workers,
AFL-CIO [General Electric Company) v. N.L.R.B., 366 U.S. 667 ( 1961).
8 Building and Construction Trades Council of New Orleans, AFL-CIO
(Markwell and Hartz, Inc.), 155 NLRB 319, 335 ( 1965). See also the
dissenting opinions in Ready-Mixed Concrete, Inc., 200 NLRB 253 (1972).
LOS ANGELES BLDG . & CONST. TRADES COUNCIL 311
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of Los Angeles Building & Construc-
tion Trades Council , AFL-CIO
To employees of Pyramid Builders, Wilpac Plumb-
ing, Michael K. Ivanovich , an Individual , Haldane
Engineering Company, Security Sheet Metal , Allied
Ornamental Iron , and C . R. Bell, an Individual
Based upon a stipulation of facts in which all sides
had the opportunity to present their evidence, the
National Labor Relations Board has found that we
violated the law and has ordered us to post this
notice and we intend to carry out the Order of the
Board and abide by the following:
WE WILL NOT nor will our officers, business
representatives , business agents, or any one acting
for us , whatever his title may be, engage in or
induce or encourage any individual employed by
Pyramid Builders , Wilpac Plumbing , Michael K.
Ivanovich , Haldane Engineering Company, Secu-
rity Sheet Metal, Allied Ornamental Iron, or C. R.
Bell, or any other person engaged in commerce or
in an industry affecting commerce , to engage in a
strike or a refusal in the course of employment to
use, manufacture , process , transport, or otherwise
handle or work on any goods, articles, materials,
or commodities, or to perform any services where
an object thereof is to force or require Pyramid
Builders, Wilpac Plumbing, Michael K. Ivano-
vich, Haldane Engineering Company, Security
Sheet Metal, Allied Ornamental Iron, or C. R.
Bell, or any other persons engaged in commerce
or in an industry affecting commerce, to cease
using, selling, handling, transporting, or otherwise
dealing in the products of, or cease doing business
with, Silver View Associates.
WE WILL NOT threaten, coerce, or restrain
Pyramid Builders, Wilpac Plumbing, Michael K.
Ivanovich, Haldane Engineering Company, Secu-
rity Sheet Metal, Allied Ornamental Iron, or C. R.
Bell, or any other persons engaged in commerce
or in an industry affecting commerce where an
object thereof is to force or require Pyramid
Builders, Wilpac Plumbing, Michael K. Ivano-
vich, Haldane Engineering Company, Security
Sheet Metal, Allied Ornamental Iron, C. R. Bell,
or any other persons engaged in commerce or in
an industry affecting commerce to cease using,
selling, handling, transporting, or otherwise deal-
ing in the products of, or cease doing business
with, Silver View Associates.
Los ANGELES BUILDING
& CONSTRUCTION TRADES
COUNCIL, AFL-CIO