Los Angeles BLDG. & Construction Trades Council

National Labor Relations Board - Board Decisions

Feb 13, 1963

140 N.L.R.B. 1249 (N.L.R.B. 1963)

LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1249
WE WILL NOT threaten our employees with economic reprisals because they
engage in union activities during nonwork time.
WE WILL NOT, by refusing to bargain in good faith, or in any like or similar
manner, interfere with , restrain , or coerce our employees in the exercise of their
right to self-organization, to form, join, or assist the above-named Union or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
-and all such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
STACKHOUSE OLDSMOBILE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office at 720
Bulkley Building, 1501 Euclid Avenue, Cleveland 15, Ohio, Telephone No. Main
1-4465, if they have any question concerning this notice or compliance with its
provisions.
Los Angeles Building & Construction Trades Council [Cecil
Mays] and Interstate Employers , Inc., Golding and Jones,
Inc., Norman E. Jones
Building and Construction Trades Council of San Bernardino
and Riverside Counties and Interstate Employers , Inc., Gold-
ing and Jones, Inc ., and Cecil Mays
Building and Construction Trades Council of San Bernardino
and Riverside Counties and Golding and Jones , Inc., and Inter-
state Employers , Inc., and its Members, Cecil and Joe Mays.
Cases Nos. 21-CC-450, 21-CC-451, and 21-CC-x.70. February 13,
1963
DECISION AND ORDER
On May 10, 1962, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, both Respondents, the General
Counsel, and the Charging Parties filed exceptions to the Inter-
mediate Report. The General Counsel and Respondent Los Angeles
Council also filed supporting briefs, and the Charging Parties request
oral argument.'
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
'Because in our opinion the record, exceptions , and briefs adequately set forth the
issues and positions of the parties , this request is hereby denied
140 NLRB No. 124.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified below.
We agree with the Trial Examiner's finding that the Board has
jurisdiction over this proceeding. In reaching this conclusion, we
have placed particular reliance upon the following record evidence.
During 1961, Cecil Mays performed work as general contractor on
construction sites in Glendale, Redlands, and La Sierra, California,
and also entered into a joint venture with his brother Joe Mays in
the construction of an apartment house also located in Redlands,
California.' The complaint alleges, in substance, that Respondents
violated Section 8(b) (4) (i) and (ii) (A) and (B) by picketing and
threatening to picket the aforementioned construction sites with an
object of forcing or requiring Cecil and Joe Mays to enter into an
agreement which would cause them to cease doing business with their
nonunion subcontractors.
One of these subcontractors, Nelson Plumbing and Heating Com-
pany, performed work on all but one of the affected sites (La Sierra
project) during the periods when Respondents are alleged to have
engaged in their illegal activity. During 1961, Nelson sold goods and
materials and performed plumbing services for Cecil Mays and for
Southeastern Conference of Seventh Day Adventists in the amounts
of $37,978 and $28,551, respectively. Also during 1961, Cecil Mays
performed services outside the State of California which were in
excess of $50,000, and Pacific Union Conference of Seventh Day
Adventists of which Southeastern is a member conference, forwarded
directly by mail to its General Conference headquarters in Washing-
ton, D.C., income, representing tithes and contributions, which was in
excess of $1 million. Therefore, as the foregoing establishes that
Nelson's combined volume of business with Cecil Mays and South-
eastern was in excess of $50,000, and that both Cecil Mays' and
Southeastern's interstate transactions satisfy our jurisdictional re-
quirement,' we find Nelson's business operations to be sufficient to
2 Respondent San Bernardino Council excepts to the Trial Examiner 's finding that
Cecil and Joe Mays were engaged in a joint venture . In line with this view, it further
contends that the business activities of Joe Mays should be considered separately and
as such the Board would not be warranted in asserting jurisdiction over Joe Mays. We
do not agree We believe that the record amply supports the Trial Examiner ' s finding
that Cecil and Joe Mays were engaged in a joint venture Moreover , even if we were to
find otherwise , we would not for jurisdictional purposes consider the business operations
of Joe Mays separate and apart from the business operations of the other employers per-
forming work at the affected jobsite. Cf . Madison Bu ilding & Construction Trades
Council , et al . ( Wallace Hildebrandt , et al, d/b/a H & K Lathing Co ), 134 NLRB 517
8 We find it unnecessary to determine whether Southeastern as a religious organization
would be treated as an exempt organization under our jurisdictional standards It suffices
to say that for purposes of our indirect outflow standard , an exempt organization qualifies
as a "user" in the same manner and to the same degree as a nonexempt organization.
See Ssemons Mailing Service , 122 NLRB 81 , footnote 12
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1251
satisfy our indirect outflow standard for nonretail businesses.' More-
over, although Nelson was not a subcontractor on one of the jobsites
in question (La Sierra project), we shall in accordance with our usual
practice consider Respondents' entire pattern of conduct and assert
jurisdiction over this whole proceeding.5
We also agree with the Trial Examiner's finding that Respondents
violated Section 8(b) (4) (i) and (ii) (A) and (B) of the Act by picket-
ing and threatening to picket the jobsites of Cecil and Joe Mays with
an object of forcing Cecil and Joe Mays to enter into an agreement
which would cause them to cease doing business with their nonunion
subcontractors. However, we do not agree with the Trial Examiner's
observations that the agreement Respondents were seeking to obtain
from Cecil and Joe Mays was itself violative of Section 8 (e).6 The
proviso to Section 8(e) exempts from the coverage of that section
agreements between employers and labor organizations in the con-
struction industry, such as that sought by Respondents here. As the
Board has stated, however, a union may not lawfully strike to obtain
such an agreement.'
ORDER$
Upon the entire record in this case and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Respondent Los Angeles Building & Construction Trades Coun-
cil, its officers, representatives, agents, successors, and assigns; and
B. Respondent Building and Construction 't'rades Council of San
Bernardino and Riverside Counties, its officers, representatives, agents,
successors, and assigns, shall:
1. Cease and desist trom :
(a) Engaging in, or inducing or encouraging employees of Cecil
Mays, Bennie Joe Mays, or any other employer to engage in, a strike,
or threatening, coercing, or restraining Cecil Mays and/or Bennie Joe
Mays, or any other employer, by a strike or picketing where in either
case an object thereof is to force or require Cecil Mays and/or Bennie
Joe Mays to enter into any agreement under the construction industry
proviso of Section 8 (e).
(b) Engaging in, or inducing or encouraging employees of Cecil
Mays and Bennie Joe Mays, or any other employer to engage in, a
strike, or threatening, coercing, or restraining Cecil Mays and/or
4 Stemons Matting Service , supra.
B Commission House Drivers, Helpers, and Employees Local No 400 (Euclid Foods,
Incorporated, d/b/a Bondi 's Mother Hubbard Market), 118 NLRB 130.
e Intermediate Report, "Concluding Findings."
? Colson and Stevens Construction Co , Inc , 137 NLRB 1650
The General Counsel excepts to the Trial Examiner's order on the ground that it is
too limited in scope. We find merit in these exceptions and, accordingly , the order appears
as modified
681-492-63-vol. 140----80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bennie Joe Mays, or any other employer, by a strike or picketing,
where in either case an object thereof is to force or require Cecil Mays
and/or Bennie Joe Mays to cease doing business with Dan Gober,
Holly Electric, Nelson Plumbing and Heating Company, Loma Linda
Electric, G. H. Housel, and Kenneth Mayberry.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their offices and meeting halls, in Los Angeles and San
Bernardino, California, respectively copies of the attached notice
marked "Appendix." 9 Copies of said notice, to be furnished by the
Regional Director for the Twenty-first Region, shall, after being
signed by Respondents' respective representatives, be posted by Re-
spondents immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to its members are customarily posted. Reason-
able steps shall be taken by Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Twenty-first Region
signed copies of the attached notice marked "Appendix" for posting
at the premises of Cecil Mays and Bennie Joe Mays, they being willing,
at all locations where notices to employees are customarily posted.
Copies of said notice shall be furnished by the aforesaid Regional
Director.
(c) Notify the Regional Director for the Twenty-first Region in
writing, within 10 days from the date of this Decision and Order, what
steps Respondents have taken to comply herewith.
MEMBER BROWN took no part in the consideration of the above
Decision and Order.
O The notice attached to the Intermediate Report as the Appendix is modified and
appended to our Decision and Order . In the event that this Order is enforced by a decree
of a United States Court of Appeals, there shall be substituted for the words "Pursuant
to a Decision and Order" the words "Pursuant to a Decree of the United States Court of
Appeals, Enforcing an Order "
APPENDIX
NOTICE TO ALL OTTP. EMPLOYEES AND ALL EMPLOYEES OF
CECIL MAYS AND BENNIE JOE MAYS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WWTE WILL NOT engage in, induce, or encourage employees of
Cecil Mays and Bennie Joe Mays, or any other employer to en-
gage in, a strike, or threaten, coerce, or restrain Cecil Mays
and/or Bennie Joe Mays, or any other employer, by a strike or
picketing, where in either case an object thereof is to force or re-
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1253
quire Cecil Mays and/or Bennie Joe Mays to enter into any agree-
ment under the construction industry proviso of Section 8 (e).
WE WILL NOT engage in, induce, or encourage employees of
Cecil Mays and Bennie Joe Mays, or any other employer to en-
gage in, a strike, or threaten, coerce, or restrain Cecil Mays and/or
Bennie Joe Mays, or any other employer, by a strike or picketing,
where in either case an object thereof is to force or require Cecil
Mays and/or Bennie Joe Mays to cease doing business with Dan
Gober, Holly Electric, Nelson Plumbing and Heating Company,
Loma Linda Electric, G. H. Housel, and Kenneth Mayberry.
Los ANGELES BUILDING & CONSTRUCTION
TRADES COUNCIL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
BUILDING AND CONSTRUCTION TRADES COUNCIL
OF SAN BERNARDINO AND RIVERSIDE COUNTIES,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional
Office, 849 South Broadway, Los Angeles 14, California, Telephone
No. Richmond 9-4711, Extension 1031, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
Howard Myers at San Bernardino , California, on April 4, 1962, on a consolidated
complaint , dated March 9, 1962 , and amendment to consolidated complaint, dated
March 30 , 1962, of the General Counsel of the National Labor Relations Board,
herein respectively called the General Counsel I and the Board. The issues litigated
were whether Respondents, or either of them, had violated Section 8(b) (4) (I) and
(ii) (A) and ( B) of the National Labor Relations Act, as amended from time to
time, 61 Stat. 136, herein called the Act.
During the course of the instant hearing the parties presented evidence and there-
after the General Counsel filed a brief which has been carefully considered.
FINDINGS OF FACT
I. THE BUSINESS OPERATIONS OF THE EMPLOYERS HERE INVOLVED
Cecil Mays is a general building contractor with offices in Loma Linda, Cali-
fornia. During 1961, Cecil Mays built , under contract with United States Depart-
ment of Interior , Bureau of Reclamation , six 3-bedroom residences for the Davis
Dam Government Camp project , located in the State of Arizona , for which he was
' This term specifically includes counsel for the General Counsel appearing at the
hearing.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid $77,900. During the same year, Cecil Mays performed construction work in
various locations within the State of California, including, among other places,
Glendale, La Sierra, Yucaipa, and Redlands.
In August 1961, Ray Zimmer discussed with Cecil Mays the building of an apart-
ment house which Zimmer was considering erecting in Redlands, California. Pur-
suant to said discussion, Cecil Mays and his brother, Bennie Joe Mays 2 (herein
called Joe Mays), also a general building contractor, agreed to build the apartment
house for Zimmer. Joe Mays prepared .the drawings, submitted the bid, and signed
the contract with Zimmer in his own name. Thereafter, Joe Mays supervised the
job, employed four of his men thereon, and furnished some trucks and equipment.
Cecil Mays supplied a tractor, a truck, an equipment operator, and advanced $2,000
to help finance the job.
During 1961, Stanley Nelson, doing business as Nelson Plumbing and Heating Com-
pany, sold goods and materials and performed plumbing services for Cecil Mays and
for Southeastern California Conference of Seventh Day Adventists, herein called
Southeastern, in the amounts of $37,978 and $28,551, respectively.
Southeastern, a nonprofit California corporation with its principal offices in
Arlington, California, is one of the seven local conferences which constitute Pa-
cific Union Conference of the Seventh Day Adventists, a nonprofit California cor-
poration with offices in Glendale, California, and herein called Pacific Union. The
remaining six local conferences, all of which are nonprofit corporations, constituting
the Pacific Union are: (1) Northern California Conference of Seventh Day Ad-
ventists with offices in Oakland, California, (2) Central California Conference of
Seventh Day Adventists with offices in San Jose , California, (3) Southern California
Conference of Seventh Day Adventists, with offices in Glendale, California, (4)
Nevada-Utah Conference of Seventh Day Adventists, (5) Arizona Conference of
Seventh Day Adventists, and (6) Hawaiian Mission of Seventh Day Adventists
During 1961, Pacific Union received from its local conferences income, repre-
senting tithes and contributions, 20 percent of which ( amounting to in excess of
$1 million) it forwarded by mail directly to General Conference of Seventh Day
Adventists, the world's headquarters of the Seventh Day Adventists and whose prin-
cipal offices are located in Washington, D C.
The General Conference owns and operates Pacific Press, a nonprofit California
corporation, which prints, publishes, and circulates religious literary material for
the Seventh Day Adventist Church.
During 1961, Pacific Press shipped from its publishing house, located in Mountain
View, California, directly to the Book and Bible Houses of the out-of-State local
conferences, religious literary material valued in excess of $50,000.
During 1961, Gibson Lumber Company sold Cecil Mays $4,843 65 worth of
Douglas fir, 50 percent of which was shipped directly to Gibson from the State of
Oregon and used by Cecil Mays on his Glendale, California, Seventh Day Adventists
sanitarium project.
During 1961, Montgomery Hardware Company sold Cecil Mays $1,606.99 worth
of finished hardware which was shipped to Montgomery from out of the State of
California and used by Cecil Mays on his Glendale, California, Seventh Day Ad-
ventists sanitarium project.
During 1961, Allred Building Contractors sold Cecil Mays merchandise and per-
formed services on his Arizona project valued at $8,000
During 1961, Cecil Mays received directly from Stic-Klip Manufacturing Company,
Inc, located in Cambridge, Massachusetts, Rubbair doors valued at about $980,
which Cecil Mays installed on his La Sierra, California, U.S. Post Office building
project.
During 1961, Joe Mays received from Dill Lumber Company, Corona Lumber
Company, and Gibson Lumber, Douglas fir in the amount of $16,709.67 50 percent
of which lumber was shipped directly to the above-named firms from points located
in the State of Oregon and used by Joe Mays on his various California projects
Upon the basis of the foregoing facts and upon the entire record in the case, it is
found, in line with established Board authority, that the employers here involved are
engaged in, and during all times material were engaged in . business affecting com-
merce within the meaning of Section 2(6) and (7) of the Act and that their combined
business operations meet the standards fixed by the Board for the assertion of
jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED
Los Angeles Building & Construction Trades Council (herein called Los Angeles
Council) and Building and Construction Trades Council of San Bernardino and
2 Also referred to in the record as Joe Mays
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1255
Riverside counties (herein called San Bernardino Council) are labor organizations 3
whose affiliated local unions admit to membership employees of Cecil Mays and of
Joe Mays.
III. THE UNFAIR LABOR PRACTICES
A. The pertinent facts
In the forepart of April 1961,4 Cecil Mays commenced work on the Glendale,
California, Seventh Day Adventists sanitarium job. He subcontracted the masonry
work to Dan Gobert, the electrical work to Holly Electric, the plumbing work to
Nelson Plumbing and Heating Company, and he subcontracted certain other work
to other subcontractors.
On April 10, John Cinquemani, a representative of Los Angeles Council, accom-
panied by a representative of the Carpenters Union, named Marsch, came to the
aforementioned sanitarium jobsite and asked Cecil Mays, in the presence of Job
Superintendent Bill Flock, to sign a short form agreement with the Los Angeles
Council. Cecil Mays replied that he would not sign the agreement. Thereupon,
Cinquemani stated, to quote from Cecil Mays' undenied and credited testimony, "If
I didn't sign the agreement, they would picket me and withdraw their men from the
job." Cecil Mays then told Cinquemani, to again quote from Cecil Mays' undenied
and credited testimony, "I wanted to use some of the church members who were
nonunion people on the church project."
The agreement proffered by Cinquemani contained a provision reading as follows:
IV.
The Employer Developer and/or Owner-Builder agrees that he shall contract
or subcontract work as provided in Article I only to a contractor or subcontractor
party to an executed current agreement with the appropriate union having work
and territorial jurisdiction, affiliated with the Council in which area the work is
performed.
Upon leaving Cecil Mays and Flock, Marsch told two carpenters, Lloyd Scott and
Earle Brummit, then employed on the aforementioned sanitarium project, that they
would have to leave the job.
On April 19, Taylor, a business agent of Local 761, which local is an affiliate of
the Los Angeles Council, came to Cecil Mays' sanitarium jobsite and asked Stanley
Nelson, who does business under the name of Nelson Plumbing and Heating Com-
pany and who was the plumbing subcontractor on said job, if he was a union con-
tractor and whether he was a signatory to a union contract. When Nelson replied
in the negative, Taylor tendered Nelson a union contract and asked Nelson to sign
it; when Nelson refused to sign the proffered contract, Taylor stated to Nelson that
he had no other choice but to picket the job. Taylor then went over to Lonnie Mullins
and Carl Smith, two Nelson employees then working on the aforementioned job, and
introduced a picketer to Smith and then stated to Smith that this was something he
hated to do, but he had to get control of the situation some way; thereupon a picketer
began picketing the said job carrying a sign stating, "Cecil Mays unfair to Los Angeles
Building Trades Council, AFL-CIO, No Agreement."
About 2 or 3 days after the picketing referred to immediately above had started,
Cinquemani, accompanied by business agents of various locals affiliated with the
Los Angeles Council, including the plumbers, masons, carpenters, and laborers
unions, came to the sanitarium jobsite and said to Cecil Mays, in the presence of
Dr. Pelt, the pastor of the church erecting the sanitarium, to quote from Cecil Mays'
undenied and credited testimony, "If I didn't sign the agreement, he would keep the
pickets on."
On April 28, Cinquemani returned to the aforesaid jobsite and conferred with
Cecil Mays, Dr. Pelt, and Norman Jones, Cecil Mays' labor relations adviser. Upon
Cinquemani's demand, Cecil Mays signed the agreement, or one very similar to it,
which Cinquemani had requested him to sign on April 10,5 and the picket was then
removed from the sanitarium jobsite.
During the summer of 1961, Cecil Mays was performing a project in Redlands,
California, for the Christian Reformed Church of that city. He had subcontracted
the plumbing work to Nelson and the electrical work to Edmund Buschbacher, who
does business under the name of Loma Linda Electric.
3 Conjointly Los Angeles Council and San Bernardino Council are herein called
Respondents.
' Unless otherwise noted all dates hereinafter mentioned refer to 1961.
5 The agreement signed on April 28 contains the paragraph quoted above.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the forepart of August, Con O'Shea, a then business representative of San
Bernardino Council, telephoned Cecil Mays and said, to quote from Cecil Mays'
credited testimony "... he knew that I was using some nonunion subcontractors
on the Christian Reformed Church and if I didn't do something about it, that they
would be forced to take some action." 6
About mid-August, Cecil Mays commenced the construction of a building for
the U.S. Post Office Department in La Sierra, California. He subcontracted the
cement work to Allred Building Contractors, the masonry work to Dan sober, the
electrical work to Holly Electric, the plumbing work to G. H. Housel, and the
painting work to Kenneth Mayberry.
Toward the end of August, O'Shea telephoned Cecil Mays and said, to again
quote from the latter's credited testimony, "I had some nonunion subcontractors 7
on the job and that if I didn't remove them, they would picket the job." 8
On August 29, 30, 31, and on September 1 and 5, the San Bernardino Council
picketed the said post office project. The legend appearing on the sign the picketer
carried read: "Cecil Mays in violation of agreements with San Bernardino-Riverside
Counties Building & Construction Trades Council, AFL-CIO."
On November 1, the Zimmer apartment house building (also referred to in the
record as the State Street project) was started by Cecil and Joe Mays. The
plumbing work was subcontracted to Nelson, the electrical work to Buschbacher.
On November 21, while four or five employees of Nelson were working on the
aforesaid job, the San Bernardino Council picketed it. The legend appearing on the
sign the picketer carried read: "To the Employees of Joe Mays. Join the Union
of your choice. Building Trades Council."
The same day, November 21, Joe Mays telephoned O'Shea and made an appoint-
ment to meet at the jobsite
On November 30, O'Shea came to the jobsite and told Joe Mays, in the presence
of Buschbacher, to quote from Joe Mays' undenied and credited testimony, "the
subcontractors would either have to join the union or I'd have to get somebody
else, some union contractors to do the job . . . that I would have to sign the . .
master agreement ... that Mr. Buschbacher of Loma Linda Electric would have to
join the union in order to continue on the job."
The following day, December 1, O'Shea returned to the jobsite accompanied by
four or five representatives of various unions and told Joe Mays, in the presence of
general superintendent of the job, Delbert Tyree, to again quote from Joe Mays'
undenied and credited testimony, "all the subcontractors on the job except Nelson
Plumbing ... would still have to join the union before they could go ahead with
the project They said 9 since Nelson Plumbing had already started the job and had
already completed some of the work, that he [sic] wouldn't have to join the union
on that particular job, that he would be able to complete it, and all the other
subcontractors would have to join the union " Thereupon, O'Shea handed Joe
Mays a copy of an agreement and requested him to sign it, adding, to again quote
from Joe Mays' undenied and credited testimony, ". . . the picket would remain on
[sic] the job and they would not be able to take it off until the contracts with the
Building Trades Council were signed by me and ... the subcontractors had joined
the union and all non-union workmen had signed up with the union."
The aforesaid job was picketed by the San Bernardino Council for about a month.
B. Concluding findings
The General Counsel asserts that Respondents' picketing the various jobs of the
Mays brothers and their threats, as expressed to the Mays brothers, that they would
6 O'Shea testified but was not questioned about this particular conversation He was
questioned, however, about two other conversations with Cecil Mays
7 Mentioning the names of Gober and Allred.
8 O'Shea's version of what he told Cecil Mays during this particular telephone conversa-
tion differs materially from Mays'. In light of the entire record, coupled with the fact
that the Mays brothers particularly impressed the Trial Examiner as being persons who
are careful with the truth and are meticulous in not enlarging their testimony beyond
their actual memory of what was said and done, and the fact that O'Shea did not so
Impress the Trial Examiner, it is found that Cecil Mays' version of what was said b^
O'Shea during this telephone conversation is substantially in accord with the facts
9 Some of the persons with O'Shea also made some remarks
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1257
picket and continue to picket their projects, were violative of Section 8(b) (4) (1) and
(H) of the Act. With this assertion the Trial Examiner concurs.'°
The Board has held that an agreement by which a contractor will subcontract
only to firms under a union contract, the very type here involved, violates
Section 8(e).11
Prior to the enactment of the 1959 amendments , the Board held that Section
8(b) (4) prohibited the inducement of employees only and that a labor organization
was free to coerce an employer to cease doing business with another employer.12
The 1959 amendments changed the law in this regard by making "such coercion
unlawful by the insertion of a clause 4(u) forbidding threats or coercion against
,any person engaged in commerce or in an industry affecting commerce ' " 13
Respondents' conduct plainly had an object of "forcing or requiring . [the
Mays brothers] to cease doing business with [their nonunion subcontractors]," not-
withstanding the fact that, unlike the usual secondary boycott situation, the form
of the activity was directed against the very employers against whom the primary
dispute lay.
The Trial Examiner has carefully considered the various defenses raised by
Respondents at the hearing and finds each to be without merit or substance.
The record as a whole establishes, and the Trial Examiner finds, that by engaging
in the activities as epitomized in section III, A, above, Respondents have, and each
has, engaged in conduct violative of Section 8(b) (4) (i ) and (ii) (A ) and (B) of
the Act
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, A, above, occurring in
connection with the business operations of the companies described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondents have, and each has, engaged in certain unfair
labor practices , it is recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1 Respondents are labor organizations within the meaning of Section 2 ( 5) of the
Act.
2. Cecil Mays and Bennie Joe Mays are , and each is , engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3 Nelson Plumbing and Heating Company, Holly Electric, Dan Gober, Allred
Building Contractors, G. H. Housel, and Kenneth Mayberry are engaged in commerce
or in an industry affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
4. By threatening , restraining , or coercing a person in an industry affecting com-
merce with an object of forcing him to cease doing business with another person,
Respondents have engaged in an unfair labor practice within the meaning of Section
8(b)(4)(i) and (ii)(A) and (B) of the Act.
5. The aforesaid unfair labor practice is an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
10 United Wholesale and Warehouse Employees. Local 261, etc ( Perfection Mattiees h
Spring Company), 129 NLRB 1014 ; International Hod Carriers , etc, Local No 11iO
(Gilmore Construction Company ), 127 NLRB 541
"Pilgrim Furniture Company, Inc, 128 NLRB 910, cited with approval in Calorator
Manufacturing Corp , 129 NLRB 704
12RIealr,ght Pacific, Ltd, 82 NLRB 271 ; Samuel Langer, 82 NLRB 1028
13 Analysis of Representative Griffin in the NLRB Leeiolatlve ITistory of the Labor-
Management Reporting and Disclosure Act, vol II, p 1523