Los Angeles Bldg. Indust.

National Labor Relations Board - Board Decisions

Jun 24, 1970

183 N.L.R.B. 1032 (N.L.R.B. 1970)

1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Los Angeles Building and Construction Trades
Council , AFL-CIO (Church's Fried Chicken,
Inc.; Church's Fried Chicken , Inc., West Coast
Division)' and Jones and Jones , Inc. Cases
21-CC-1178 and 21-CP-230
June 24, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On April 7, 1970, Trial Examiner Stanley Gilbert
issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and
was engaging in an unfair labor practice within the
meaning of Section 8 (b)(7)(C) of the National
Labor Relations Act, as amended , and recommend-
ing that it cease and desist therefrom and take cer-
tain affirmative action , as set forth in the attached
Trial Examiner 's Decision . The Trial Examiner also
found that Respondent had not engaged in certain
other unfair labor practices within the meaning of
Section 8 (b)(4)(i) and (ii)(A) and (B) of the Act
and recommended that the complaint pertaining
thereto be dismissed in its entirety . Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer 's Decision and a supporting brief. Respon-
dent filed a brief in opposition to General Counsel's/
exceptions. V
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with these cases
to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in these cases, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as herein
modified.
The Trial Examiner found without exception
from Respondent that it violated Section
8(b)(7)(C) of the Act by picketing Church's for
more than 30 days with an object of forcing and
requiring Church's to enter into an agreement with
Respondent without being the current representa-
tive of Church's employees and without filing a
petition under Section 9(c) of the Act. However„
as the General Counsel correctly contends, the
Trial Examiner, through an inadvertence, failed to
find that the picketing was not protected by the
second proviso to Section 8(b)(7 )(C).2 As Respond-
ent did not contend or offer evidence that its
183 NLRB No. 102
picketing was protected by the said proviso, and as
the other elements necessary to find a violation
have been established, we adopt the Trial Ex-
aminer 's conclusion that Respondent's picketing
constituted a violation of Section 8(b)(7)(C).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent , Los Angeles Building and
Construction Trades Council , AFL-CIO, its of-
ficers , agents , and representatives , shall take the ac-
tion set forth in the Trial Examiner 's Recom-
mended Order.
Herein called Church's
s That proviso reads as follows:
Provided further, that nothing in this subparagraph (C) shall be con-
strued to prohibit any picketing or other publicity for the purpose of
truthfully advising the public ( including consumers ) that an employer
does not employ members of, or have a contract with, a labor or-
ganization , unless an effect of such picketing is to induce any in-
dividual employed by any other person in the course of his employ-
ment , not to pick up, deliver or transport any goods or not to perform
any services. i
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Trial Examiner: Based on a
charge filed by Jones and Jones, Inc., on September
4, 1969, as amended on October 9, 1969, in Case
21-CC-1178, hereinafter referred to as the CC
case, the complaint therein was issued on October
17, 1969. Based on a charge filed by Jones and
Jones, Inc., on September 4, 1969, as amended on
October 9, 1969, in Case 21-CP-230, hereinafter
referred to as the CP case, the complaint therein
was issued on October 17, 1969. By order of the
Regional Director dated October 24, 1969, the
aforesaid cases were consolidated for hearing.
The complaint in the CC case alleges that Los
Angeles Building and Construction Trades Council,
AFL-CIO, hereinafter referred to as the Union or
Respondent, violated Section 8(b)(4)(i) and
(ii)(A) and (B) of the Act. The Respondent, in its
answer thereto, denies that it committed the unfair
labor practices alleged in said complaint. The com-
plaint in the CP case alleges that the Union violated
Section 8(b)(7)(C) of the Act. The Respondent, by
its answer , denies that it committed the unfair labor
practice alleged in said complaint.
Pursuant to notice, a hearing was held in Los An-
geles , California, on November 12, 1969, before
me. Briefs were received from the General Counsel
and Respondent within the time designated
therefor.
LOS ANGELES BLDG. INDUST.
Upon the entire record in this case, and upon ob-
servation of the witnesses as they testified, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
The parties stipulated, and it is hereby found, as
follows:
Church's Fried Chicken, Inc., herein called
Church's, a Texas corporation with its principal of-
fice in San Antonio, Texas, and its West Coast Divi-
sion office in Lynwood, California , is engaged in
the business of operating a chain of retail drive-in,
take-out stores featuring fried chicken and other
prepared foods located throughout the State of
Texas and in the States of California, Arkansas,
Georgia, and Louisiana.
Church's, in the course and conduct of its busi-
ness operations , annually derives gross revenue in
excess of $ 500,000 and annually purchases and
receives at its retail stores goods, materials, and
supplies originating outside the State in which they
are received valued at a substantial amount.
Signal Plumbing , Inc., herein called Signal, is en-
gaged in the building and construction industry as a
plumbing contractor , and maintains its office and
principal place of business in El Monte , California.
Pearman and Son Ready -Mix, herein called Pear-
man, is engaged in the manufacture , sale, and trans-
portation of concrete to contractors in the building
and construction industry and to the general public,
and maintains its office and principal place of busi-
ness in Gardena , California.
At all times material herein , Church's has been
engaged in the construction , through the use of
various specialty contractors and suppliers , includ-
ing Signal and Pearman , for its own use, of drive-in,
take-out retail stores in Southern California. At all
times material herein , Church's has been engaged,
through the use of various specialty contractors and
suppliers , including Signal and Pearman , for its own
use, of retail stores located at 107 East Alondra
Boulevard , Compton , California , and at 261 East
Vernon Avenue, Los Angeles, California. At the
Alondra Boulevard and Vernon Avenue locations,
Church 's contracted with Signal for the per-
formance of the plumbing work, and, at the Vernon
Avenue location, contracted with Pearman for the
furnishing of concrete.
Church's is now , and at all times material herein
has been , an employer engaged in commerce and in
an industry affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
Church's, Signal , and Pearman are now, and at
all times material herein have been , persons en-
gaged in commerce or in an industry affecting com-
merce within the meaning of Section 8(b)(4)(i)
and (ii ) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
1033
As is admitted by Respondent , it is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
There is virtually no contradiction in the
testimony or dispute as to the facts. All of the
testimony is credited and there is set forth herein-
below a summary of the facts gleaned from said
testimony.
At the time of the hearing Church's had about
125 retail stores in the aforementioned several
States. In April 1969, Church's entered the
Southern California area and, at the time of the
hearing, it had four stores in operation in Southern
California and three under construction. It appears
that all of its stores were, and are, built by it in the
same manner, i.e., instead of using a general con-
tractor, one of its employees superintends the con-
struction and engages various specialty contractors
to perform substantially all of the construction
work.
Since June 1969, Durel Tucker was employed by
Church's as its construction superintendent in
Southern California. Tucker hires the subcontrac-
tors, oversees their performance, approves their
bills which he sends to the main office for payment,
and disburses payments to them. Church's does not
have a contractor's license, but Tucker does have
such a license. Church's builds stores for its own
use and neither solicits nor performs construction
for others. About the time of the events involved
herein, Tucker drove a pickup truck in the course
of his duties which bore a sign reading "Church's
Construction Company." The sign was of the mag-
netic type which had been blown off prior to the
time of the hearing and has not been replaced. It
appears that there is no such entity as Church's
Construction Company.
Tucker does some incidental work on the con-
struction sites and occasionally has the assistance of
an employee from the Church's West Coast Divi-
sion office who does some general laborer's work at
said sites. Certain of the specialized equipment
used in the stores, such as electrical equipment,
fryers, and coke machines are installed by em-
ployees of Church's who are sent out from its Texas
headquarters. The store buildings are substantially
uniform and the average construction cost of a
store building itself is about $13,000. In addition,
there may be some expenses in land improvement
at each site which amount to roughly from $3,000
to $4,000. The above figures do not include the
cost of the equipment installed in the store.
On July 28, 1969, Fred Burlin, business represen-
tative of Carpenters Local 1437, visited the Alon-
dra jobsite where he saw two men preparing forms
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for concrete . He testified that he asked them if they
belonged to the "brotherhood" and they said they
did not and that they were employed by Church's.'
On the next day, July 29, Burlin called Sam Wil-
liams, business representative of Respondent, and
asked him if Church's had signed a "Building
Trades Agreement" with the Respondent. The
record discloses that Church's had not signed such
an agreement and it is inferred that Williams re-
ported that fact to Burlin . On July 30, Williams and
Burlin went to the Alondra site and found two em-
ployees working there. Williams asked the older of
the two if there were any employees of Church's on
the job. He replied that there were not, that he was
an employee of Signal . Williams also asked him if
he belonged to the "Plumbers Local Union" to
which he replied that he did not.
On or about August 1,2 Respondent commenced
picketing at the Alondra location and continued
picketing at said location until on or about August
29, with a sign which read, "Church's Const. Com-
pany Unfair to Los Angeles Building & Construc-
tion Trades Council, AFL-CIO. No Agreement."
On or about August 13, Respondent commenced
picketing at the Vernon location and continued
picketing there until on or about September 5 with
a sign bearing the same legend.
In between the time Williams and Burlin visited
the Alondra site and the time picketing com-
menced, Williams had a conversation with Tucker.
In the course of that conversation (apparently
between July 30 and August 1), Williams, accord-
ing to a stipulation of the parties, made a demand
that Church's sign a "Building Trades Agreement"
and asked Tucker to contact his home office in
Texas with regard thereto.
Tucker testified to a subsequent conversation
with Williams. His testimony with respect thereto is
as follows:
Q. (By Mr. Scott) Now, Mr. Tucker, did
you speak to Mr. Williams after the start of
picketing at the Alondra job site?
A. Yes. Sometime later, a week or so later,
he called-maybe two weeks-he called me
over the phone and asked if I had talked to
them in Texas. And at that time I told him I
had talked to them, and I said they told me to
tell him thanks for the grace period that he
gave us to decide whether we wanted to sign a
contract or not. And I don't remember all of
the conversation, but I do remember that he
got upset about something and hung up; didn't
finish the conversation.
It appears from the above that Respondent did de-
mand, on or about July 31, that Church's sign an
' Their statement as to who employed them is, of course , hearsay
testimony and is not credited in view of the uncontradicted testimony of
Tucker that there were no employees of Church 's on the Alondra job to do
the work of "forming and pouring of concrete ," that such work was done
by a subcontractor , K-B Enterprises
2 Although Williams testified that the picketing started on July 31, it ap-
agreement.3 It does not appear, however, that the
record would establish a basis for a finding that
there was a threat to picket the Alondra location as
alleged in paragraph 11 of the complaint in the CC
case, or that there was a demand made on or about
August 12, as alleged in paragraph 12 of said com-
plaint.
It is admitted by Respondent in its answer that a
demand that Church's sign an agreement was also
made on August 29. It appears from testimony that
the demand was made during the course of a meet-
ing between Tucker and Williams on August 28 or
29. (It does not appear to be material to determine
which of the two dates is correct for the purposes
of this decision. In view of the Respondent' s admis-
sion to the allegation in the complaint that the date
of the demand was August 29, it is found that the
correct date of the meeting is August 29.) Williams'
testimony as to what occurred during the course of
that meeting, which testimony is uncontradicted
and credited, is as follows:
Now, in that meeting with Mr. Tucker, was
there any discussion regarding the subcontrac-
tors?
A. On August 27 I received a call from Mr.
Tucker at my office, asking me would I bring
down two more of the Building Trades' short-
form agreements to his office as soon as possi-
ble; that he had lost the two that I had left in
his office on July 30, and that his office wanted
him to mail them back there with the possibili-
ty that they may sign the agreement . And I told
him fine, I would be out at his office tomorrow
morning. That would be August 28, at approxi-
mately 10:00 a.m., to bring two more of our
short-form agreements.
So I did; I came to his office the next morn-
ing, on August 28, at approximately 10:00
,a.m., and met Mr. Tucker there; and I went
over the agreement again with him, explaining
the agreement in its entirety to the best of my
knowledge, the various clauses in the agree-
ment.
And I told him if he had-if his Company,
Church's Fried Chicken or Church's Construc-
tion Company, had any subcontracts that they
had, that they were bound to or had prior to
signing this agreement, that this Council would
waive-the Building Trades Council would
waive those subcontracts.
Q. What did you mean by the waiving of the
subcontracts?
A. By letting the Company finish the con-
tracts that they had been committed to to their
subs. For example, if they have a plumbing
pears from the record and the admission in Respondent's answer to the
complaint that the August 1 date is correct . In any event , a determination
of which of the two dates is correct is of no importance to a resolution of
the issues herein
' In par . 12 of the complaint in the CC case , it is alleged that such de-
mands were made on August 12 and 29.
LOS ANGELES BLDG. INDUST.
contractor they have already subbed their
work out to, we would waive any contractor he
could show me that they had a legitimate con-
tract with prior to signing this agreement. They
could go ahead and complete it under the
terms of the contract they had with their sub-
contractors.
Also, I told him that if he had any employees
working directly on his payroll, as far as with
Church's Fried Chicken is concerned, that the
Union would accept them into the respective
Local Unions if the men so desired to join the
Union.
And he said, well, they only had one or two
men that would normally do carpentry work,
and he didn't know for sure whether they
would join the Union or not.
And I said, "Well, that's entirely up to them.
We are not insisting that any of your em-
ployees join the Union. If they want to, that is
entirely up to them."
It is also admitted by Respondent in its answer that
Church's refused to accede to said demands and
has not signed a "Building Trades Agreement."
No purpose would be served in setting forth in
this decision the terms of the agreement or the
provisions thereof set forth in the complaint in the
CC case, inasmuch as the General Counsel con-
ceded in the course of the hearing that the contract
would not be violative of Section 8(e) of the Act if
signed by Church's provided Church's is found to
be an "employer in the construction industry," and
Respondent has apparently conceded that the
agreement would be violative of Section 8(e) of the
Act if it is found that Respondent is not an em-
ployer in the construction industry. It is clear that
the agreement, inter alia , would require Church's to
subcontract jobsite work only "to a person, firm,
partnership or corporation that is party to an ex-
ecuted, current Agreement with the appropriate
Union having work and territorial jurisdiction, af-
filiated with the Council in which area the work is
performed."
Stephen Martin, a truckdriver for Pearman and
Son Ready-Mix Concrete, testified, and his
testimony is credited, that he is a member of the
Teamsters Union and that on August 23 he had
received instructions to deliver ready-mix concrete
to Church's Vernon site.4 His credited testimony as
to what occurred when he attempted to make the
delivery is as follows:
Q. And what happened when you arrived at
the job site?
A. When I pulled up, I noticed there was a
single picket on the job. I pulled over to the
side of the curb, got out, went over and talked
to the picket; come back to the truck, called in
to the plant, and he told me to use my own
judgment whether to back in to the job or not.
1035
Q. You have a radio in the truck?
A. Yes.
Q. And after you called the plant, what did
you do?
A. I believe I went back over and talked to
the picket again , and I left.
Q. Where did you speak to the picket?
A. On the sidewalk.
Q. Was there anyone else present?
A. No.
Q. What did you say to the picket, and what
did he say to you?
TRIAL EXAMINER: The first time or the
second time?
Q. (By Mr. Scott) The first time-the
second time.
A. Well, I asked him first if it was a legal
picket, and he said-what he told me is that
the man from [Teamsters Local] 420 come
down there and said don't let none of the
trucks cross.
Q. Was there anything else said?
A. I don't remember.
Q. What did you do then?
A. I got back in the truck. I called the other
truck, which was on its way back down there,
and I said, "You might as well pass it up"; and
I went on back down to the plant.
Q. Did you make any deliveries to that job
site afterwards?
A. No.
According to the record , the picket of the Ver-
non site at the time was Duane Kohr; he was the
only picket at the Vernon site; and Williams was in
charge of the picketing at both the Alondra and
Vernon sites, and had authorized Kohr to picket
the Vernon site on August 23. Williams testified,
and his testimony is credited , that he did not
authorize a representative of Teamsters Local 420
to visit the Vernon site or to issue any instructions
to the picket there, and that he learned about the
Teamsters representative visiting the site from Kohr
on August 25. The record does not disclose, how-
ever , that he took any action to remedy the effect
of the picket 's conduct.
The Alleged Violation of Section 8(b)(4)(i) and
(ii)(A) of the Act
It is clear that a determination that Respondent
violated Section 8(b)(4)(i) and (ii)(A) of the Act
requires a finding that the agreement which
Respondent, by its picketing, was attempting to
have Church 's sign would be violative of Section
8(e) of the Act if Church's signed it. It follows,
therefore, that in order to find the execution of said
agreement would be violative of Section 8(e) of the
Act, it is necessary to find that Church 's is not "an
' It appears that the concrete had been ordered by Church's
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer in the construction industry. "5 Thus, the
sole issue with respect to the allegation in the CC
complaint that Respondent violated the aforesaid
section of the Act is whether or not Church's is an
employer in the construction industry within the
meaning of Section 8 (e) of the Act.
The record discloses that Respondent , in seeking
Church's signature to the agreement , was ad-
dressing itself solely to Church's operation in build-
ing its stores within Respondent 's jurisdictional
area. There is no dispute, and it is clear, that the
work of building stores falls within the category of
work performed in the construction industry. How-
ever, the General Counsel argues, in essence, that
Church's operations in building its stores does not
make it an employer in the construction industry,
because it neither solicits nor does construction
work for others but solely for its own use and
because its "primary business" is that of selling
fried chicken to retail customers patronizing its
stores. In support of this argument, General Coun-
sel contends as follows:
It was the intent of the proviso to permit hot
cargo agreements between construction unions
and "prime contractors" in the construction
industry relating to "subcontracting" of con-
struction work. II Leg. Hist. 1723, 1732(2),
1821(1), 1858(1). The hot cargo exemption
set forth in the first proviso to Section 8(e) of
the Act is not applicable, it is asserted, to a
relationship between an owner, such as
Church's, and contractors, such as Signal
Plumbing, Inc., and the other specialty con-
tractors used by Church's. Columbus Building
and Construction Trades Council, AFL-CIO
(The Kroger Co.), 149 NLRB 1224. Cf. Local
585 of the Brotherhood of Painters, Decorators
& Paper Hangers of America, AFL-CIO (Fal-
staff Corporation), 144 NLRB 100.6
Church's, instead of employing a general con-
tractor, acted as its own prime contractor through
Tucker, its construction superintendent. General
Counsel quite correctly points out- that in the
legislative history there are frequent references to
"the contractor in the construction industry," and
that the phrase is used as being synonymous with
"employer in the construction industry." However,
there is nothing in the legislative history which
would indicate that a company acting as its own
contractor in building stores is not a "contractor in
the construction industry" within the meaning of
said phrase as used by the legislators. On the other
hand, there is nothing in the legislative history
which would indicate that such a company clearly
is "a contractor in the construction industry."
It appears , from some aspects of the legislative
5 Sec 8(e) of the Act contains the following proviso
Provided , That nothing in this subsection ( e) shall apply to an agree-
ment between a labor organization and an employer in the construc-
tion industry relating to the contracting or subcontracting of work to
be done at the site of the construction, alteration , painting , or repair of
history, that a reason for according the construc-
tion industry an exemption from the prohibitions of
Sections 8(b)(4)(A) and 8 (e) of the Act is the con-
trol contractors are able to exercise-over the labor
relations on their jobsites because of their control
over the selection of their subcontractors and the
terms of the subcontracts. Senator Morse , speaking
in support of the exemptions in the construction in-
dustry, stated:
The case of the building and construction in-
dustry represented probably the most flagrant
injustice , where a general contractor is, in ef-
fect, entirely in control of the kind of labor
relations taking place on a jobsite which he
runs . He lets subcontracts based upon price,
responsibility, and the ability to handle labor
relations.
i
He lets those contracts , very well knowing the
kind of labor relations which may exist within
any of the subcontractor companies .... He is
not innocent of any unfair labor policies on the
part of a subcontractor . Vol. Il,-Legislative His-
tory of the Labor-Management Reporting and
Disclosure Act of 1959, p. 1425(1).
Senator Kennedy, on page 1433 ( 3), also speak-
ing in support of the exemptions in the construction
industry, stated as follows:
Agreements by which a contractor in the
construction industry promises not to subcon-
tract work on a construction site to a nonunion
contractor appear to be legal today. They will
not be unlawful under section 8(e). The
proviso is also applicable to all other agree-
ments involving undertakings not to do work
on a construction project site with other con-
tractors or subcontractors regardless of the
precise relation between them.
*
It should be particularly noted that the
proviso relates only to the "contracting or sub-
contracting of work to be done at the site of
the construction."
These references , albeit meager, tend to indicate
that Congress was concerned with the agreements
relating to the subcontracting of work on the con-
struction site rather than the nature of the primary
business of the "contractor ." In contrast, Section
8(f) of the Act which permits prehire labor agree-
ments in the construction industry , limited such
agreements solely to situations where the employer
is primarily in the construction industry . It is the
a building, structure, or other work
It appears that the above cases cited by the General Counsel are not ap-
plicable to the factual situation herein, and research has failed to reveal any
decision which would be of aid in resolving the issue presented
LOS ANGELES BLDG. INDUST. 1037
Trial Examiner 's belief that Congress intended a
distinction between the employers referred to in
Section 8(e) and those referred to in ' Section 8(f)
of the Act, that by using the word "primarily" in
Section 8 ( f) it intended to restrict the category of
employers;wl'iereas by the failure to use the word
"primarily " in Section 8(e) of the Act it intended
to broaden the category beyond those primarily in
the construction industry . Thus, although it might
be'said • that Church's is primarily engaged in. the
business of selling fried chicken in its retail stores,
that fact would not appear to militate against
Church's being found to be an employer in the con-
struction industry within the meaning of Section
8(e) of the Act, insofar as its operations in con-
structing stores . With respect to Section 8(e), what
Church's primary business may be would appear to
be immaterial . Only its store construction opera-
tions are involved herein. I
The Trial Examiner is of the, opinion that the fact
that Church's subcontracts construction work only
for its own stores would not make it inappropriate
to`find it an employer in the construction industry
within the meaning of Section 8(e) of the Act.
Based on the above analysis of the legislative histo-
ry which indicates that it was the intent of Congress
to exempt labor agreements with "contractors in
the construction industry " from the prohibition of
Section 8 ( e) of the Act because of the control that
the contractor has over its subcontractor 's labor
relations , it is logical to assume that ' mpany that
acts as its own prime contractor , and thus can con-
trol the labor relations of its subcontractors, should
be included in the category of employers in the
construction industry . It does not appear that Con-
gress was interested in what use would be made of
the construction or whether the contractor did or
did not do construction work for others . Thus, in
the circumstances of this case in which Church's is
apparently engaged in a continuing operation of
building stores , it would appear appropriate to find
that with respect to such operation it is an em-
ployer in the construction industry within the
meaning of Section 8(e) of the Act.
Therefore, it is concluded that by picketing
Church's with the object of obtaining Church's
signature to its building trades agreement, Respond-
ent did not violate Section 8(b)(4)(i) and' (ii)(A)
of the Act, as alleged in the CC complaint.
Northeastern Indiana Building and Construction
Trades Council (Centlivre Village Apartments), 148
NLRB 854, 856.
The Alleged Violation of Section 8(b)(4)(i) and
(ii)(B) of the Act
The General Counsel contends that Respondent's
picketing of Church's had as a "concurrent objec-
tive" that of forcing or requiring Church's "to
cease doing business with Signal Plumbing, Inc.,
and other persons not signatories to appropriate
collective-bargaining agreements," in violation of
Section 8(b)(4)(i) and (ii)(B) of the Act. It is clear
that by picketing Church's, Respondent was seek-
ing to obtain Church's signature to a contract
which would prohibit Church's from using Signal,
since it was a nonunion subcontractor. Thus, it is
reasonable to assume that Respondent had as an ul-
timate objective that of causing Church's to cease
doing business with Signal as well as other non-
union subcontractors. The Respondent could, of
course, seek to accomplish this ultimate objective
through enforcement of the Building Trades Agree-
ment, once Church's was a signatory thereto.' How-
ever, it does not necessarily follow that by picketing
for the immediate objective of obtaining such an
agreement Respondent also had as an immediate
objective that of causing Church's to cease, or
refrain from, doing business with Signal and other
nonunion subcontractors. The immediate and ulti-
mate objectives cannot be considered as concur-
rent.
As found hereinabove, on July 28, Burlin, busi-
ness representative of Carpenters Local 1437,
visited the Alondra jobsite. There he saw two men
preparing forms for concrete and asked them if
they belonged to the "brotherhood." On the next
day, he called Williams, business representative of
Respondent, and asked him if Church's had signed
a Building Trades Agreement with the Respondent,
which it had not. On July 30, the two business
representatives went to the Alondra site and found
two employees working there. Williams asked the
older of the two men if there were any employees
of Church's on the job and was told there were not
and that he was an employee of Signal. Williams
also asked him if he belonged to the "Plumbers
Local Union," to which he replied that he did not.
As further found, after the visit to the Alondra site
and before the picketing commenced, Williams had
a conversation with Tucker in which he made a de-
mand that Church's sign a Building Trades Agree-
ment. The picket signs at both the Alondra and
Vernon sites clearly indicated that Respondent's
dispute was with Church's and that it was because it
had "no agreement" with Church's.
The Trial Examiner is of the opinion that the
mere presence of a nonunion subcontractor on a
jobsite which is being picketed to obtain a Building
Trades Agreement with the contractor is not suffi-
cient to establish that the picketing is also for the
concurrent and unlawful objective of causing the
contractor to cease doing business with the non-
union subcontractor. If this were not so, the ex-
emption granted in the construction industry to the
prohibition of Section 8(b)(4)(A) would be
rendered virtually meaningless, since the very pur-
pose of the agreement for which it is lawful to
' This, of course, is not intended to indicate that it would be lawful for
Respondent to picket Church 's to obtain enforcement of such a contract
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picket under Section 8(b)(4)(A) is to obtain a law-
ful means of forcing cessation of business between
the contractor and nonunion subcontractors. Con-
sequently, there must be more than the mere
presence of a nonunion subcontractor on the
jobsite during the picketing to support a finding of
a violation of Section 8(b)(4)(B). Los Angeles
Building and Construction Trades Council (Couch
Electric Company, Inc.), 151 NLRB 413. Cf.
Northeastern Indiana Building and Construction
Trades Council, supra, 856,8 and Los Angeles Build-
ing and Construction Trades Council (Lively Con-
struction Co.), 170 NLRB 1499,9 and Los Angeles
Building & Construction Trades Council (Gasket
Manufacturing Company), 175 NLRB 242.10 Thus,
the mere presence of Signal employees on the
Alondra job and the ascertainment by Respondent's
business representative that they were nonunion is
not sufficient to establish the existence of a concur-
rent unlawful objective as contended by General
Counsel. At no time did the Respondent indicate
that it was seeking to have Church's cease doing
business with Signal or any other nonunion subcon-
tractor except through its demand that Church's
sign a contract. As a matter of fact, on August 29,
the occasion of its second demand that Church's
sign a contract, Williams assured Tucker that
Respondent would permit Church's to carry out all
of its existing commitments to them.tt
In further support of his contention that Respond-
dent violated Section 8(b)(4)(B) of the Act, the
General Counsel refers to the fact established in the
record that Respondent's picket at the Vernon site
successfully induced an employee of Pearman and
Son Ready-Mix, "a neutral employer," not to cross
the picket line at the Vernon location. General
Counsel argues that "Respondent induced em-
ployees of Pearman and Son Ready-Mix to engage
in a work stoppage for an object of forcing or
requiring Church's to cease doing business with
Signal Plumbing, Inc., and other nonunion contrac-
tors." It is the Trial Examiner's opinion that the
work stoppage was the result of lawful primary
picketing to obtain an agreement from Church's
and, therefore, did not constitute a violation of the
Act.
It is concluded that General Counsel has failed to
establish by a preponderance of the evidence that
Respondent violated Section 8(b)(4)(i) and (ii)(B)
of the Act as alleged in the CC complaint.
The Violation of Section 8(b)(7)(C) of the Act
Respondent admittedly picketed the Alondra site
8 In the cited case, the fact that the message on the picket sign identified
the subcontractor as the "primary employer" with whom there was a
dispute, as well as other circumstances , prompted the Board to find a viola-
tion of Sec 8(b)(4)(B)
e In the cited case, the Respondent attempted to apply pressure against a
neutral subcontractor and his.employees in order to compel the neutral
subcontractor to cease doing business with the contractor
10 In the cited case, Respondent sought to obtain the subcontractor's im-
mediate removal from the project
from August 1 to 29 and the Vernon site from Au-
gust 13 to September 5. Therefore, it picketed
Church's said two locations for a total period ex-
ceeding 30 days without filing a petition under Sec-
tion 9(c) of the Act.12 The only defense which
Respondent asserts in its brief "is that each labor
project (jobsite] constituted a separate dispute, and
that at no time did the respondent picket for more
than 30 days at any one project." This defense is
patently without merit in that it ignores the fact
that the picketing at both sites was for the single
objective, to obtain Church' s signature to a building
trades agreement, and, therefore, the same dispute
was involved at the two sites. Consequently, it is
concluded that Respondent violated Section
8(b)(7)(C) of the Act, as alleged in the complaint
in the CP case. International Brotherhood of Electri-
cal Workers, Local Union No. 113, AFL-CIO
(I.C.G. Electric, Inc.), 142 NLRB 1418, 1427; Los
Angeles Building and Construction Trades Council
(Lively Construction Co.), 170 NLRB 1499.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with Church's
operations 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
It having been found that the Respondent has en-
gaged in a certain unfair labor practice , it will be
recommended that Respondent cease and desist
therefrom and take certain affirmative action
deemed necessary to effectuate the policies of the
Act.
CONCLUSIONS OF LAW
1. Church 's Fried Chicken , Inc., is an employer
engaged in commerce and a business affecting com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Los Angeles Building and Construction
Trades Council , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Church 's Fried Chicken , Inc., is an employer
in the construction industry within the meaning of
" Although a question was raised by the Charging Party as to whether,
according to the terms of the agreement , Williams had the authority to so
modify the building trades agreement, the question was raised, it was as-
serted, with respect to Williams' credibility in testifying that he made such
a commitment to Tucker His credibility , however, is not in issue since
Tucker corroborated Williams' testimony
12 The record discloses that no such petition was filed and that Respond-
ent had not been certified as the bargaining representative of Church's
employees
LOS ANGELES BLDG. INDUST. 1039
Section 8(e) of the Act insofar as its operation of
building stores.
4. By picketing Church 's from August 1 to Au-
gust 29 , 1969, at Church 's Alondra location and
from August 13 to September 5, 1969, at Church's
Vernon location with an object of forcing and
requiring Church's to enter into an agreement with
Respondent without being the current representa-
tive of Church 's employees and without a petition
under Section 9(c) being filed within the 30 days
after the commencement of the picketing , Respond-
ent engaged in an unfair labor practice within the
meaning of Section 8 (b)(7)(C) of the Act, as al-
leged in the complaint in Case 21 -CP-230.
5. General Counsel has failed to prove by a pre-
ponderance of the evidence that Respondent vio-
lated Section 8(b)(4)(i ) and (ii )(A) of the Act, as
alleged in the complaint in Case 21 -CC-1178.
6. General Counsel has failed to prove by a pre-
ponderance of the evidence that Respondent vio-
lated Section 8(b)(4)(i ) and (ii )( B) of the Act, as
alleged in the complaint in Case 21-CC-1178.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law , and the entire record in this
case , it is recommended that Los Angeles Building
and Construction Trades Council , AFL-CIO, its of-
ficers , agents , successors , and assigns , shall:
1. Cease and desist from picketing or causing to
be picketed Church's Fried Chicken , Inc., where an
object thereof is to force or require the said Com-
pany to enter into an agreement with it in circum-
stances prohibited by Section 8(b)(7)(C) of the
Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Post at its business offices and meeting halls
in Los Angeles copies of the attached notice
marked "Appendix . 11 13 Copies of said notice, to be
furnished by the Regional Director for Region 21,
after being duly signed by an authorized representa-
tive , shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places , including all
places where notices to members are customarily
posted . Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced , or covered by any other material.
(b) Respondent shall transmit to the Regional
Director for Region 21 signed copies of the said
notice for posting by Church's Fried Chicken, Inc.,
said Company being willing , in places where notices
to employees are customarily posted.
(c) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of the
receipt of this Decision, what steps the Respondent
has taken to comply herewith.14
The complaint in Case 21-CC-1178 should be,
and is hereby, dismissed in its entirety.
17 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , 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 In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading " Posted by Order of the Na-
tional 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 "
14 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 21, in writing , within 10 days from the date of this Order, what steps
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 under any conditions
prohibited under Section 8(b)(7)(C) of the
Act picket or cause to be picketed Church's
Fried Chicken, Inc., where an object thereof is
to force or require said Company to enter into
a labor agreement with us.
Los ANGELES BUILDING
AND CONSTRUCTION
TRADES COUNCIL,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.