Los Angeles Building and Construction Trades Council

National Labor Relations Board - Board Decisions

Nov 1, 1974

214 N.L.R.B. 562 (N.L.R.B. 1974)

562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Los Angeles Building and Construction Trades Coun-
cil (Joseph Freed & Benjamin H. Werber, d/b/a B
& J Investment Company) and Jones, Jones and
Jones; Joseph Freed
Los Angeles Building and Construction Trades Coun-
cil and Jones, Jones and Jones ; Joseph Freed and
Joseph Freed & Benjamin H. Werber, d/b/a B & J
Investment Company.' Party to the Contract. Cases
21-CC-1501 and 21-CE-130
November 1, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On May 15, 1974, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs, and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions z of the Administrative Law Judge only
to the extent consistent herewith.
The stipulated facts are as follows. B & J is en-
gaged in business as an owner-builder-developer in
the building and construction industry in the State of
California. At all times material herein, B & J has
been engaged in the construction of an industrial
building at 46th Street and Alameda in Los Angeles,
California. At no time, in connection with the work
at the jobsite, has B & J employed any of its own
employees in construction activities other than super-
visors. In accordance with its usual procedure, B & J
subcontracted all of the actual construction work at
the jobsite to various specialty contractors in the
building and construction industry, including the ce-
ment work to Haskell E. Shaw and Associates, the
installation of drywall and steel studs to Raymond
Interior Company, the installation of fire sprinklers
to Fireguard Sprinkler Company, the installation of
air-conditioning equipment to Weather Control
Company, the electrical work to Morrison Electrical
i Herein called B & J
2 We note that since the issuance of the Administrative Law Judge 's Deci-
sion , the three cases passed on by three Administrative Law Judges and
cited by him in fn 10 of his Decision as relating to provisions identical to
art V of the agreement herein were adopted by the Board at 212 NLRB 320
(1974), 212 NLRB 343 (1974), and 211 NLRB 107 (1974), respectively
Inc., and the glass work to A to Z Glass Company,
herein referred to, respectively, as Shaw, Raymond,
Fireguard, Weather, Morrison, and A to Z, and col-
lectively as the subcontractors.
B & J is not a member of any employer association
which engages in collective bargaining with labor or-
ganizations and, prior to October 25, 1973,' B & J
was not signatory to any collective-bargaining agree-
ment with any labor organization. Nor, at any time
material herein, were Weather, Morrison, or A to Z
members of any employer association which engages
in collective bargaining with labor organizations or
signatory to any collective-bargaining agreement
with any labor organization.
On October 23, S.W. "Tex" Williams, Respon-
dent's business representative, demanded that
B & J enter into a short-form building trades agree-
ment with Respondent, herein called the short-
form agreement, requiring B & J to cease doing busi-
ness with nonunion subcontractors. As B & J initially
refused to enter into the aforesaid agreement, Re-
spondent was engaged in a labor dispute with B & J.
At no time material herein was Respondent engaged
in a labor dispute with any of the subcontractors.
On October 23, Williams threatened to picket the
jobsite if B & J did not sign the short-form agreement
by October 24.
On October 25, Respondent commenced picketing
the B & J jobsite, whereupon the employees of Shaw
ceased working and left the jobsite. However, the
employees of Steel Construction Service, a subcon-
tractor of Shaw at the jobsite, Raymond, Morrison,
and Fireguard, continued working.
Shortly after Shaw's employees left the B & J job-
site, Hosea Lewis, Shaw's superintendent, was lock-
ing up the construction shack preparatory to leaving
the jobsite. Lewis was approached by Williams, who
gave Lewis his business card and inquired as to
which employees were still working on the job. Lewis
replied that the electricians (Morrison), sprinkler
men (Fireguard), steel workers (Steel Construction),
and drywall men (Raymond) were still working. Wil-
liams said, "I'm going to report them," and then left
the jobsite.
After Williams left, the employees of the four com-
panies who were still working behind the picket line
at the jobsite came to Lewis and asked him to whom
had he been speaking and what the conversation
was. Lewis gave the employees Williams' business
card and told the employees that Williams had said
he was going to report them, whereupon the remain-
ing employees requested that Lewis leave the con-
struction shack open so that they could use the tele-
phone, which Lewis did.
' All dates hereinafter are in 1973
214 NLRB No. 86
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 563
After the above conversation with Lewis, the em-
ployees of Steel Construction, Raymond, Morrison,
and Fireguard, ceased working and left the jobsite.
Thereupon, construction work at the jobsite was shut
down.
On October 25, as a consequence of the work stop-
page and the complete cessation of all work at the
jobsite, B & J executed the short-form agreement
which Respondent had demanded that B & J sign.
After becoming signatory to the short-form agree-
ment and without request therefor by the Respon-
dent, B & J terminated its contracts with Weather,
Morrison, and A to Z because they were not parties
to collective-bargaining agreements with any labor
organizations. B & J replaced them with union sub-
contractors who were signatory to collective-bargain-
ing agreements with appropriate labor organizations
in compliance with article IV of its contract with Re-
spondent.
Respondent was unaware that there were any non-
union subcontractors on the job before the filing of
the charge herein.
Member Kennedy agrees with the Administrative
Law Judge's finding that Respondent encouraged
employees to refuse to work and threatened or
coerced B & J in order to require B & J to cease
doing business with nonunion subcontractors in vio-
lation of Section 8(b)(4)(i) and (ii)(B), respectively.
Respondent's conceded lack of knowledge that there
were nonunion subcontractors on the job when it
picketed the job, and the fact that Respondent did
not ask B & J to replace the nonunion subcontractors
with union subcontractors, are irrelevant according
to Member Kennedy. In his opinion the Respondent
was "liable for reasonably forseeable consequences
of its conduct." He thus concludes that Respondent
violated the Act merely because it picketed to compel
B & J to execute a collective-bargaining contract
containing a subcontracting clause and thereafter the
nonunion subcontractors were removed from the job.
We disagree.
It is well settled that a union has the right to picket
to compel an employer to execute a labor agreement
containing a subcontracting clause valid under the
construction industry proviso to Section 8(e), as long
as it does not have the additional objective of forcing
an employer to cease doing business with "an ex-
isting and identified nonunion subcontractor." 4 It
seems apparent to us that no such unlawful objective
can be found unless and until it can be shown that
the union was aware of the existence and identity of
a nonunion subcontractor.
4 Northeastern Indiana Building and Construction Trades Council, et a!
(Centhvre Village Apartments), 148 NLRB 854. 858 (1964)
The parties stipulated that Respondent was un-
aware of the existence or identity of the nonunion
subcontractors until the unfair labor practice charges
were filed, and that sometime after B & J executed
the collective-bargaining agreement, and not pur-
suant to any requests by Respondent, B & J termi-
nated its contracts with the nonunion subcontractors
and replaced them with union subcontractors.
If we were to adopt the theory of Member Kenne-
dy that Respondent should have reasonably forseen
that B & J would terminate its contracts with the
nonunion subcontractors after it executed the con-
tract, it would completely undermine our decision in
Centlivre, supra. For since it is undisputed that a
union does have the right to picket to force an em-
ployer to sign a contract containing a subcontracting
clause, under Member Kennedy's view there would
be a violation every time the employer voluntarily
and without urging by the union terminated its con-
tracts with the nonunion subcontractors.
In our opinion, Member Kennedy completely fails
to recognize the difference between the obtaining of
a valid subcontracting clause and the cessation of
business that might necessarily follow from such a
clause.' For, under his view the Union could have
sued B & J to enforce the subcontracting clause and
not have violated the Act,' but would violate the Act
when doing nothing to obtain compliance with the
subcontracting clause. There is a significant differ-
ence between an employer's choice whether to refuse
to deal any further with its subcontractors at the time
a question regarding boycott arises, and the choice it
has at the time the collective-bargaining agreement is
signed.' Thus, coercion exerted upon B & J to force it
to execute an agreement containing a subcontracting
clause is not coercion compelling B & J to cease
doing business with the nonunion subcontractors.
Accordingly, we find no violations stemming from
the aforesaid conduct and shall dismiss the 8(b)(4)(i)
and (ii)(B) allegations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
5 Construction, Production and Maintenance Laborers Union, Local 383, et
a! [Colson & Stevens Construction Co ] v N L R B, 323 F 2d 422, 426 (C A
9, 1963)
6 Ets-Hokin Corporation, 154 NLRB 839 (1965), enfd sub nom Interna-
tional Brotherhood of Electrical Workers, AFL-CIO, and its Local Union No
769, 405 F 2d 159 (C A 9, 1968), cert denied 395 U S 921 (1969), Local
Union No 48 of Sheet Metal Workers International Association v. The Hardy
Corporation, 332 F 2d 682 (C A 5, 1964)
7 Local 1976, United Brotherhood of Carpenters and Joiners of America, et
al [Sand Door & Plywood Co ] v NLRB, 357 U S 93, 105-106 (1958)
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER KENNEDY, dissenting in part:
The majority has reversed the Administrative Law
Judge's finding that Respondent violated Section
8(b)(4)(i) and (ii)(B) of the Act by picketing the gen-
eral contractor, B & J, to force the latter to cease
doing business with nonunion subcontractors. I dis-
agree.
Respondent picketed the B & J jobsite in order to
compel B & J to enter into a contract which con-
tained the following clauses:
I
immaterial that Respondent did not know that there
were nonunion subcontractors on the job and that
Respondent did not request their replacement with
union subcontractors since Respondent was "liable
for reasonably foreseeable consequences of its con-
duct." The majority rejects this rationale , stating that
"no such unlawful objective can be found unless and
until it can be shown that the union was aware of the
existence and identity of a nonunion subcontractor."
In The Radio Officers' Union of the Commercial Te-
legraphers Union [A. H. Bull Steamship Co.] v.
N.L.R.B., 347 U.S. 17, 44 ( 1954), the Supreme Court
said:
The Employer, Developer and/or Owner agrees
that all work performed within the jurisdiction
of any Union affiliated with the Councils shall
be performed pursuant to an executed agree-
ment with the appropriate Union having work
and territorial jurisdiction and affiliated with the
Council in the area in which the work is per-
formed.
IV
The Employer, Developer and/or Owner-Build-
er agrees that he shall contract or subcontract all
jobsite work set forth in Article I above to a
person, firm, partnership or corporation that is
party to an executed, current Agreement with
the appropriate Union having work and territo-
rial jurisdiction, affiliated with the Council in
which area the work is performed.
B & J had subcontracted out all the work to be
performed at the jobsite to various subcontractors,
several of which were nonunion. There is no question
but that Respondent was aware of the subcontract-
ing, although it was not aware that certain of the
subcontractors were not signatory to any collective-
bargaining agreement with any labor organization.
In response to the picketing, B & J signed an agree-
ment with Respondent containing the above clauses
on October 25, 1973. Thereafter, B & J terminated its
contracts with the nonunion subcontractors and re-
placed them with union subcontractors as required
by the agreement with Respondent. The parties stip-
ulated that Respondent did not request these termi-
nations.
On these facts the Administrative Law Judge
found that the termination of the nonunion subcon-
tractors was the result of the picketing and that it was
[I]t is also clear that specific evidence of intent
to encourage or discourage is not an indispensa-
ble element of proof of violation of §8(a)(3)
. . . . Both the Board and the courts have rec-
ognized that proof of certain types of discrimi-
nation satisfies the intent requirement . This rec-
ognition that specific proof of intent is unneces-
sary where employer conduct inherently
encourages or discourages union membership is
but an application of the common -law rule that a
man is held to intend the foreseeable consequences
of his conduct . Cramer v. United States, 325 U.S.
1, 31; Nash v. United States, 229 U.S. 373, 376;
United States v. Patten, 226 U.S. 525 , 539; Ag-
new v. United States, 165 U.S. 36, 50 . Thus an
employer 's protestation that he did not intend to
encourage or discourage must be unavailing
where a natural consequence of his action was
such encouragement or discouragement. Con-
cluding that encouragement or discouragement
will result , it is presumed that he intended such
consequence . In such circumstances intent to
encourage is sufficiently established .8 [ Emphasis
supplied.]
Although this is not an 8(a)(3) case, the principle
enunciated in Radio Officers is equally applicable
here. A person is responsible for the "foreseeable
consequences of his conduct ." A specific intent to
cause such consequences is not a necessary element
of proof. The law conclusively presumes such intent
from the objective facts. Thus , it is immaterial, as
stated by the Administrative Law Judge , that Re-
spondent did not know that there were nonunion
subcontractors on the job , or that Respondent did
not request their termination , if in fact Respondent's
' "The law of treason , like the law of lesser crimes , assumes every man to
intend the natural consequences which one standing in his circumstances
and possessing his knowledge would reasonably expect to result from his
acts" Cramer v United States, 325 U S 1, 31 (1944)
Persons engaging in a conspiracy "must be held to have intended the
necessary and direct consequences of their acts and cannot be heard to say
the contrary " United States v Patten, 226 U S 525, 543 (1913)
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL
conduct caused such termination and this was a fore-
seeable consequence. There is no question but that B
& J canceled its contracts with nonunion subcontrac-
tors as the result of being forced to sign a collective-
bargaining contract with Respondent which prohib-
ited contracts with such persons. Was this a foreseea-
ble consequence of Respondent's conduct? The Ad-
ministrative Law Judge found that it was and I agree.
It seems to me that any reasonable person in
Respondent's position could only have anticipated
that B & J would comply with the contract's require-
ments and terminate its relationship with any non-
union subcontractors. It is noteworthy that, while the
parties stipulated that Respondent was not aware
certain named subcontractors were not signatory to
any collective-bargaining agreement with any labor
organization, there is no stipulation that Respondent
believed that all the subcontractors on the job had
union contracts.
In the Centlivre case,9 the Board held "picketing by
a union in the construction industry to interrupt
business relations between a neutral general contrac-
tor and an identified subcontractor constitutes a vio-
lation of Section 8(b)(4)(B) notwithstanding the fact
that the picketing also has a lawful concurrent objec-
tive of securing a `hot cargo' agreement permitted by
the 8(e) proviso." I can perceive no reason in logic or
in policy for distinguishing between a situation where
the picketing labor organization seeks a cessation of
business between the neutral general contractor and
a named subcontractor and one where the cessation
sought is between the general contractor and all non-
union, although unnamed, subcontractors. It seems
to me that interruption of business on the wholesale
level is every bit against the policy of the Act as in-
terruption at retail. Accordingly, I would find, as did
the Administrative Law Judge and for the reasons
given by him, that Respondent violated Section
8(b)(4)(i) and (ii)(B) of the Act.
With respect to the 8(b)(4)(i) and (ii)(A) and the
8(e) allegations concerning the fringe benefit clauses,
I adhere to the views set forth in the dissent in Joint
Council of Teamsters No. 42, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Merle Riphagen), 212 NLRB 320
(1974). Furthermore, since there is no evidence in
this proceeding concerning the application of these
clauses, I find it unnecessary to decide whether,
standing alone, such clauses are violative of the Act.
9 Northeastern Indiana Building Construction Trades ( ouncil, et at (Cent-
hvre Village Apartments), 148 NLRB 854, 857 (1964)
DECISION
STATEMENT OF THE CASE
565
GEORGE CHRISTENSEN, Administrative Law Judge: On
March 6, 1974, I conducted a heanng at Los Angeles, Cali-
fornia, to try issues raised by a consolidated complaint is-
sued on January 29, 1974, on the basis of an original
charge filed in Case 21-CC-1501 on December 6, 1973,'
and an amended charge filed in the same case on January
21, 1974, plus an original charge filed in Case 21-CE-130
on January 21, 1974.
The consolidated complaint alleges that the Los Angeles
Building and Construction Trades Council 2 violated Sec-
tion 8(b)(4) and 8(e) of the National Labor Relations Act,
as amended (hereafter the Act), by picketing a Joseph
Freed & Benjamin H. Werber, d/b/a B & J Investment
Company 3 jobsite, threatening a subcontractor on the job
that his employees would be disciplined, and encouraging
subcontractor employees on the job to cease work, all in
order to force, and forcing, B & J to sign a contract prohib-
ited by Section 8(e) of the Act.
The Council conceded it demanded that B & J execute a
contract wherein it agreed to employ only union subcon-
tractors on itsjobs, that it picketed aB & J jobsite to secure
that result, that it secured B & J's signature to such a con-
tract as the result of that picketing, but denies the contract
provisions in question are prohibited by Section 8(e) of the
Act, denies its picketing to secure those contract provisions
was unlawful, denies that it threatened a subcontractor
that his employees would be disciplined if they did not
cease to work on the job, denies that it encouraged employ-
ees at the jobsite to cease work (other than by its picket-
ing), and, therefore, denies that it violated the Act.
The issues are:
1. Whether any provisions of the contract the Council
forced B & J to enter into are prohibited by Section 8(e) of
the Act;
2. Whether the Council's picketing of a B & J jobsite to
force B & J to enter into that contract was violative of
Section 8(b)(4) of the Act;
3 Whether the Council threatened a B & J subcontrac-
tor at the jobsite with disciplining of his employees if they
continued to work and thereby violated Section 8(b)(4) of
the Act; and
4. Whether the Council encouraged subcontractor em-
ployees at the jobsite to cease working other than by its
picketing activities and thereby violated Section 8(b)(4) of
the Act.
The parties appeared by counsel at the hearing and were
afforded full opportunity to adduce evidence, examine and
cross-examine witnesses, argue and file briefs . Briefs have
been received from the General Counsel and from the
Council.
1 Read 1973 after all further date references omitting the year
Z Hereafter called the Council
3 Hereafter called B & J
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based upon my review of the entire record,' observation
of the witnesses, perusal of the briefs and research, I enter
the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The parties stipulated that B & J, in the course of its
business activities during calendar year 1973, purchased
and received lumber products and materials valued in ex-
cess of $50,000 from Strong Tie Structures, a supplier lo-
cated within the State of California, who in turn purchased
and received those products directly from suppliers located
outside the State of California. The Council admitted in its
answer that it was a labor organization as that term is de-
fined in the Act.
Based upon the foregoing, I find and conclude that at all
times pertinent B & J was an employer engaged in com-
merce in a business affecting commerce and the Council
was a labor organization, as those terms are defined in
Section 2(2), (5), (6), and (7) of the Act.
union subcontractors, that is, they were not parties to any
contract with any labor organization covering the rates of
pay, wages, hours, and working conditions of their employ-
ees.
4. The parties stipulated and I find that at no time prior
to December 6 was the Council aware that A & Z, Morri-
son, and Weather were nonunion subcontractors employed
at the Jobsite.
5, The Council admitted and I find that S. W. (Tex)
Williams, the Council's representative and agent acting on
its behalf, on October 23 demanded that B & J execute a
contract with the Council containing the following provi-
sions:
IV
The Employer, Developer and/or Owner- Builder
agrees that he shall contract or subcontract all jobsite
work set forth in Article I above to a person, firm,
partnership or corporation that is party to an execu-
ted, current agreement with the appropriate Union
having work and territorial jurisdiction, affiliated with
the Council in which area the work is performed.
II. THE UNFAIR LABOR PRACTICES
V
A. Facts
1. The parties stipulated and I find that at pertinent
times B & J was engaged in the construction of an industri-
al building at 46th Street and Alameda, Los Angeles, Cali-
fornia (hereafter called the jobsite), that B & J, following
its usual procedure, subcontracted all of the construction
work at the jobsite to various specialty contractors in the
building and construction industry, that B & J did not em-
ploy any of its own employees in construction activities at
the jobsite (other than supervisors), and that prior to Octo-
ber 25, B & J was not a party to any collective-bargaining
agreement with any labor organization.
2. The parties stipulated and I find that at pertinent
times the following subcontractors were employed by B &
J at the jobsite for the following work:
(a) Haskell E. Shaw and Associated (hereafter
Shaw) -cement work.
(b) Fireguard Sprinkler Company (hereafter Fire-
guard)-install fire sprinklers.
(c) Raymond Interior Company (hereafter Ray-
mond)-install drywall and steel studs.
(d) Weather Control Company (hereafter Weather)-in-
stall air conditioning equipment.
(e) Morrison Electrical Inc. (hereafter Morrison)-elec-
trical work.
(f) A & Z Glass Company (hereafter A & Z)-glass
work.
3 It was stipulated by the parties and I find that, at all
times pertinent, Weather, Morrison, and A & Z were non-
"The General Counsel 's unopposed motion to correct the transcript is
granted The name of the General Counsel shall be corrected to Parke wher-
ever it appears , the name of the witness Lewis shall read Hosea Lewis
wherever it appears , the word " them" shall be substituted for "it" at p 9, I
15
The Employer, Developer and/or Owner- Builder
agrees that in the event he contracts or subcontracts
any jobsite work set forth in Article I above, there
shall be contained in his contract with the subcontrac-
tor a provision that the subcontractor shall be respon-
sible for the payment of all the wages and fringe bene-
fits provided under the agreement with the appropri-
ate Union affiliated with the Council. In the event that
any subcontractor fails to pay the wages or fringe ben-
efits provided under the agreement with the appropri-
ate union affiliated with the Council, the Employer,
Developer and/or Owner-Builder shall become liable
for the payment of such sums and such sums shall
immediately become due and payable by the Employ-
er, Developer and/or Owner-Builder, provided, how-
ever, he shall be notified of any such nonpayment by
registered letter by the appropriate Union no later
than ninety (90) days after notice of and/or comple-
tion of the entire project.
IX
In the event that the Employer, Developer and/or
Owner-Builder violates any provision of this Agree-
ment with the exception of Article IV above, or fails to
abide by the determination as provided in Article
VIII, or in the event that any contractor or subcon-
tractor of the Employer, Developer and/or Owner-
Builder fails to abide by the provisions of the appro-
priate agreement, with the exception of any subcon-
tracting clause contained in the appropriate agreement
of the subcontractor, it will not be a violation of this
agreement for the Council to terminate this agreement
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 567
and it shall not be a violation of this agreement for
any employee to refuse to perform any work or enter
upon the premises of such Employer, Developer and/
or Owner-Builder , to the extent permitted by law, and
employees who refuse to perform any work or enter
upon the premises under the circumstances shall not
be subject to discharge or any other disciplinary ac-
tion, to the extent permitted by law.
The Employer, Developer and/or Owner-Builder
further agrees that on all of his jobs, he, all of his
contractors and subcontractors will abide by all Local,
State and Federal health, safety and sanitary regula-
tions, and in the event that there are any conditions
which may be or tend to be detrimental to the employ-
ees' health , safety, morals or reputation, it is agreed
that the employees shall not be required to work under
such conditions. It is further agreed that no employee
shall be required to cross any lawful primary picket
line or enter any premises at which there is a lawful
primary picket line authorized or approved by the
Council, individually or collectively, or authorized by
any Central Labor Body in the area covered by this
agreement . The Employer, Developer and/or Owner-
Builder agrees that he will not assign or require any
employee covered by this Agreement to perform any
work or enter premises under any of the circumstances
above described at which there is a lawful primary
picket line.
During the time of any violation of any of the provi-
sions of this Agreement by the Employer, Developer
and/or Owner-Builder, contractor or subcontractor,
whether created by their executed current agreements
or otherwise, the affiliated Unions shall be released
and relieved of any obligation to furnish workmen to
any of them.
12. I find that Williams approached Lewis, gave Lewis
his business card, and asked Lewis what employees were
still working on the job (behind the picket line), that Lewis
replied the electricians (Morrison), sprinkler men (Fire-
guard), the steelworkers (Steel Construction) and the dry-
wall men (Raymond) were still working, and that Williams
then stated to Lewis that he was going to report them and
left the jobsite (based on Lewis' uncontradicted testimony).
13. I find that after Williams left the employees of the
four companies working behind the picket line (Steel Con-
struction, Raymond, Morrison, and Fireguard) ap-
proached Lewis and asked him to whom he had been
speaking and what the conversation was; that Lewis
showed them Williams' business card and told them Wil-
liams said he was going to report them; that the employees
asked Lewis to leave the construction shack open so they
could use the telephone; that shortly thereafter all the em-
ployees in question left the jobsite; and that with the cessa-
tion of work by those employees all work on the jobsite
ceased (based on Lewis' uncontradicted testimony and the
parties' stipulation).
14. The parties stipulated and I find that, as a conse-
quence of the work stoppage and complete cessation of all
work at the jobsite, B & J executed the contract which
Williams had demanded that it sign on October 23 and the
Council ceased to picket and work resumed at the jobsite.
15. The parties stipulated and I find that following its
entry into the aforesaid contract, and without request
therefor by the Council, B & J terminated its contracts with
Weather, Morrison, and A & Z and replaced them with
union subcontractors in compliance with article IV of its
contract with the Council.
16. The parties stipulated and I find that the Council
was unaware there were any nonunion subcontractors on
the job prior to the filing of the charge in this case.
6. The Council admitted and I find that on October 23
Williams threatened to picket the jobsite if B & J failed to
sign the aforesaid contract by October 24
7. The Council admitted and I find that inasmuch as B
& J failed to sign the contract by October 24, on the morn-
ing of October 25, the Council placed pickets at the jobsite.
8. I find that Williams visited the jobsite on October 25
the morning it was picketed (based on Lewis' uncontradict-
ed testimony).
9. I find that at the time of Williams' visit to the,lobsite
employees of Steel Construction Service (hereafter Steel), a
Shaw subcontractor, Raymond, Morrison, and Fireguard
were working at the jobsite behind the picket line (based
on Lewis' uncontradicted testimony).
10. I find that Shaw's employees had ceased work at the
jobsite on the appearance of the Council's pickets and
prior to Williams' arrival at the jobsite (based on Lewis'
uncontradicted testimony and the parties' stipulation).
11. I find that Shaw's superintendent on the job, Lewis,5
was locking the construction shack preparatory to leaving
the jobsite when Williams arrived (based on Lewis' uncon-
tradicted testimony).
5 1 further find that Lewis was a supervisor as that term is defined in the
Act
B. Analysis and Conclusions
1. The 8(b)(4)(i)(B) allegation
It is an unfair labor practice under Section 8(b)(4)(i)(B)
of the Act for a labor organization to encourage employees
to refuse to work when an object is to require an employer
to cease doing business with another employer.
Findings have been entered that the Council picketed
the B & J jobsite on October 25, that such picketing en-
couraged employees at the jobsite to cease work, that an
object of that picketing was to require B & J to execute a
contract requiring B & J to cease doing business with non-
union subcontractors, and that the picketing succeeded in
forcing B & J to sign the contract in question and to re-
place subcontractors Weather, Morrison, and A & Z and
their employees with subcontractors who were parties to
contracts with Council affiliates and employed members of
those affiliates at rates of pay, wages, hours, and working
conditions set forth in those contracts.
I, therefore, find and conclude that by the foregoing con-
duct the Council violated Section 8(b)(4)(i)(B) of the Act .6
6l find irrelevant the Council's lack of knowledge there were nonunion
subcontractors on the job when it picketed the job and that the Council did
Continued
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The 8(b)(4)(ii)(B) allegation
It is an unfair labor practice under Section 8(b)(4)(u)(B)
of the Act to threaten or coerce an employer when an ob-
ject is to force that employer to cease doing business with
another employer.
Findings have been entered that the Council threatened
to picket B & J on October 23, and picketed B & J on
October 25, with an object of forcing B & J to execute a
contract requiring B & J to cease doing business with non-
union subcontractors, that the picketing succeeded, and
that B & J was forced to replace Weather, Morrison, and A
& Z and their employees with subcontractors who were
parties to contracts with the Council's affiliates and who
employed members of those affiliates at rates of pay, wag-
es, hours, and working conditions set forth in those con-
tracts.
I therefore find and conclude that by the foregoing con-
duct the Council violated Section 8(b)(4)(ii)(B) of the Act.
3. Further allegations of violation of Section 8(b)(4)(i)
and (ii)(B) of the Act
The General Counsel alleged that the Council also vio-
lated Section 8(b)(4)(ii)(B) of the Act by Williams' October
25 statement to Lewis that he was going to report the em-
ployees working behind the Council's picket line.
While I construe Williams' comment as added support
for findings entered previously that the Council intended
by its picketing to coerce B & J into signing the contract
with an object of pressuring B & J to cease doing business
with Weather, Morrison, and A & Z, I find the remark too
ambiguous to support a finding that by such remark the
Council threatened Lewis' employer, Shaw, with discipline
of Shaw's employees, with an object of forcing Shaw to
cease doing business with B & J and, in turn, forcing B &
J to cease doing business with Weather, Morrison, and A &
Z. It is also noted there were no employees of Shaw work-
ing at the time of the remark, it is therefore difficult to see
how the remark can be construed as directed to discipline
of Shaw's employees for working behind the Council's
picket lines.
I therefore shall recommend that those portions of the
complaint, alleging that by Williams' remark the Council
committed an 8(b)(4)(n)(B) violation, be dismissed.
The General Counsel further alleged that the Council
violated Section 8(b)(4)(i)(B) by virtue of Lewis' passing on
Williams' October 25 remark to employees of Steel Con-
struction, Raymond, Morrison, and Fireguard.
A finding to that effect would have to be based upon a
preliminary finding that Lewis was an agent of the Coun-
cil, and I cannot so find. Lewis was neither empowered nor
authorized by Williams to pass on his remarks. While it
might be argued that Williams intended that Lewis pass it
not ask B & J to replace those nonunion subcontractors and their employees
with union subcontractors employing members of the Council's affiliates
The Council is liable for reasonably foreseeable consequences of its con-
duct
on, I cannot enter such a finding on the state of the record
As noted heretofore, I also find that the remark in question
was too ambiguous to support a finding that by it the
Council encouraged the employees of Steel Construction,
Raymond, Morrison, and Fireguard to cease work, with an
object of forcing their employers to cease doing business
with B & J and, in turn, forcing B & J to cease doing
business with Weather, A & Z, and Morrison.'
I therefore shall recommend that those portions of the
complaint, alleging that by Lewis' passing on Williams'
remark to employees of Steel Construction, Raymond,
Morrison, and Fireguard the Council committed an
8(b)(4)(i)(B) violation, be dismissed.
4. The 8(b)(4)(i) and (ii)(A) allegations
The General Counsel alleges that the Council violated
Section 8(b)(4)(i)(A) of the Act by its October 25 picketing,
in that such picketing encouraged employees at the jobsite
to cease work with an object of forcing B & J to execute a
contract prohibited by Section 8(e) of the Act, and that the
Council violated Section 8(b)(4)(n)(A) of the Act by its Oc-
tober 23 threat to picket B & J, and its October 25 picket-
ing of B & J, with an object of forcing B & J to execute a
contract prohibited by Section 8(e) of the Act.
Section 8(e) of the Act prohibits an employer and a labor
organization from entering into a contract wherein the em-
ployer agrees to cease doing business with any other em-
ployer.
There is no question that article IV of the Council's con-
tract proposal, and the contract executed by B & J and the
Council, required B & J to cease or refrain from doing
business with any subcontractor who was not a party to a
current contract with a Council affiliate.
Such contract provisions, since they limit the general
contractor to doing business solely with subcontractors
whose employees are covered by a collective-bargaining
agreement, are unlawful.8
However, article IV is removed from the prohibition of
Section 8(e) (and Sec. 8(b)(4)) of the Act by the construc-
tion industry proviso to Section 8(e), which states in es-
sence that: "Nothing in this subsection (e) shall apply to an
agreement between a labor organization and an employer
in the construction industry relating to the contracting and
subcontracting of work to be done at the site of the con-
struction . . . of a building."
I therefore find and conclude article IV of the B & J-
Council contract is within the purview of the construction
proviso to Section 8(e) and therefore is not violative of
Section 8(e) or 8(b)(4)(i) and (ii)(A) of the Act, and I shall
recommend that those portions of the complaint so alleg-
ing be dismissed.
Article V of the B & J-Council agreement requires B & J
to insert in all B & J contracts with its subcontractors a
7 Morrison was a nonunion subcontractor, in essence, then, the General
Counsel contends that Morrison's employees ceased work to help the Coun-
cil remove them from the job This is patently incredible
8 N L R B v Joint Council of Teamsters No 38 [Arden Farms Company],
338 F 2d 23 (C A 9, 1964), Meat and Highway Drivers Local 710 [Wilson &
Company] v N L R B, 335 F 2d 709 (C A D C, 1964), Building and Con-
struction Trades Council of San Bernardino, etc [Golding & Jones, Inc, etc ] v
NLRB , 328 F 2d 540 (C A D C, 1964)
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 569
provision wherein those subcontractors agree to meet the
wage and fringe benefit standards established by contracts
between the Council's affiliates and employers performing
work within the area of the type performed at the B & J
jobsite.
The General Counsel argues that article V has a second-
ary thrust because it requires B & J, a neutral prime con-
tractor, to aid the Council's affiliates by securing from B &
J's subcontractors the wage and fringe benefits provided in
contracts between those affiliates and contractors doing
business in the area.
The Council argues that article V is primary in nature;
the Council as agent of its affiliates sought and secured by
article V a provision protecting and preserving the area
wage and fringe benefits standards for workmen employed
at the jobsite.
I agree with the Council's position. Article V is primary,
not secondary in nature, and therefore is not unlawful un-
der Section 8(e) of the Act. The provision in question sim-
ply assures that the wage and fringe benefit standards pre-
vailing in the area shall be paid to workmen employed at
the jobsite.
The Board and the courts have held that area standards
provisions designed to protect and preserve area standards
are permissible primary provisions not violative of Section
8(b)(4) or Section 8(e) of the Act.9
Three judges who recently reviewed the same provision
have reached a similar conclusion.10 I adopt their reason-
ing. I therefore find and conclude that article V of the B &
J-Council agreement is not violative of Section 8(e) of the
Act and therefore the Council did not violate Section
8(b)(4)(i) and (ii)(A) of the Act by seeking and securing it.
I therefore shall recommend that those portions of the
complaint so alleging be dismissed."
CONCLUSIONS OF LAW
1. By its October 25 picketing encouragement of em-
ployees at the jobsite to cease work with an object of forc-
ing B & J to sign a contract requiring B & J to cease doing
business with Weather, Morrison, and A & Z, the Council
violated Section 8(b)(4)(i)(B) of the Act
2. By its October 23 threat to picket B & J and its Octo-
ber 25 picketing of B & J with an object of forcing B & J to
sign a contract requiring B & J to cease doing business with
Weather, Morrison, and A & Z, the Council violated Sec-
tion 8(b)(4)(ii)(B) of the Act.
9 Truck Drivers Local 413 [Brown Transport Corp and Patton Warehouse,
Inc ] v N L R B, 334 F 2d 539 (C A D C, 1964), Orange Belt District Coun-
cil of Painters No 48 [Calhoun Drywall Company] v N L R B, 328 F 2d 534
(C A.D C, 1964), General Teamsters Local 982 (J K Barker Trucking Com-
pan,', etc), 181 NLRB 515
1 Joint Council of Teamsters No 42 etc (Merle Riphagen), Cases 21-
CC-1424 and 21-CE-122, International Union of Operating Engineers Local
12 (Griffith Company etc), Cases 21-CC-1451 and 21-CE-126, Plumbers
and Pipefitters Local 230 (Hartig Plumbing Company etc), Cases 21-
CC-2761 and 21-CC-2481
11 Since I've entered findings that art V is not %iolative of Sec 8(e) of the
Act, General Counsel's argument that art V is not protected by the con-
struction proviso to Sec 8 (e) because it may be enforced by self-help under
art IX is irrelevant That argument, of course, is inapplicable to art IV,
since art IV is specifically excluded from coverage of art IX
3. The Council did not by any other act alleged in the
complaint violate the Act.
4. The unfair labor practices specified above affect com-
merce as defined in the Act.
THE REMEDY
It having been found that the Council engaged in unfair
labor practices in violation of the Act, it shall be recom-
mended that the Council be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the purposes of the Act.
On the basis of the foregoing findings of fact, the entire
record in the case, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 12
Los Angeles Building and Construction Trades Council,
its officers, agents, and representatives, shall-
1. Cease and desist from threatening to picket or picket-
ing Joseph Freed and Benjamin H. Werber d/b/a B & J
Investment Company and any other employer in the build-
ing and construction industry who is not a party to a cur-
rent agreement with the Council and/or its affiliates, where
an object of such threats and/or picketing is to encourage
employees currently working at a jobsite to cease work
and/or to force B & J or another employer to execute a
contract requiring B & J or another employer to cease
doing business with a contractor or subcontractor em-
ployed at such jobsite.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Post at the business offices and meeting halls copies
of the attached notice marked "Appendix." 13 Copies of
said notice, on forms provided by the Regional Director
for Region 21 shall, after being duly signed by an official
representative of the Council, be posted by the Council
immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members and affiliates
are customarily posted Reasonable steps shall be taken by
the Council to ensure that said notices are not altered, de-
faced or covered by other material.
(b) Promptly after receipt of copies of the notice from
the Regional Director for Region 21, the Council shall re-
turn to him signed copies for posting by B & J, if it is
willing, at its jobsites in Los Angeles, California, and any
other of its jobsites within the territorial jurisdiction of the
Council, in all places where notices to employees of B & J
or its subcontractors are customarily posted.
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
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
13 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 National Labor Relations Board" shall be read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
the Council has taken to comply herewith.
IT IS FURTHER ORDERED that allegations of the complaint
other than those relating to the violations of Section
8(b)(4)(i) and (u)(B) above found shall be dismissed.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
employed at a B & J jobsite to cease work, with an object
of forcing B & J to execute a contract requiring B & J to
replace Weather Control Company, Morrison Electrical
Incorporated, and A & Z Glass Company and their em-
ployees at the jobsite with subcontractors who were signa-
tories to collective-bargaining agreements with our affili-
ates, and ordered us to post this notice delcaring that:
WE WILL NOT in the future picket B & J or any other
employer to encourage employees at their jobsites to
cease work in order to force B & J or any other em-
ployer to sign a contract requiring removal of any sub-
contractor and his employees from the jobsite because
such subcontractor was not signatory to a contract
with one of our affiliates.
After a hearing, the National Labor Relations Board found
that we violated the Act by threatening to picket, and by
picketing, Joseph Freed and Benjamin H. Werber, d/b/a B
& J Investment Company, thereby encouraging employees
Los ANGELES BUILDING AND
CONSTRUCTION TRADES
COUNCIL