Malek Construction Co.

National Labor Relations Board - Board Decisions

Sep 6, 1979

244 N.L.R.B. 890 (N.L.R.B. 1979)

Sacramento Area 3is:ricf Cmncil ~f Zarpenters,
United Brotherhood of iarpenters Si Joiners of
America, AFE-CIO and Male.4 Construction Co,
Zase 20-CC-2095
September 6, 1979
DECISION AND ORDER
Or: February 26. i979. Administrative Law Judge
William J. Pannier l i I issued the attached Decision in
this proceeding. Thereafter. Xespondent filed excep-
tions and a supporting brief. and rhe Generd Caunsel
filed a brief in response therero.
The Board has considered the record and the at-
tached Decision in light or' the exceptions and briefs
and has decided to affirm ihe rulings. findings. and
conclusions of the Administrative Law Judge and no
adopt his recommended Order.
Like the Administrative Law Judge. we find that
Respondent Union's picketing was for the puipose of
inducing neutral employees not to perform services
for their neutral em~lovers and constituted coercion . -
of those nine employers. thereby violating Sectior.
8(b)(4)(i) and (ii)(B) of the Acr. Respondent Union's
dispute was with Malek. the general contractor, yet i t
picketed at the gate reserved for the contractors. Un-
der these circumstances, the picketing was ciearly sec-
ondary and for illegal purposes.
We continue to adhere to our holding in Markwell
and Hartz' that the guidelines laid down by the Su-
preme Court in General Electric and Carries are in-
applicable to the facts of this case.' The legality of
picketing a t a common situs in the construction in-
dustry, including picketing a t gates reserved exclu-
sively for neutral contractors at the project. is deter-
mined under the Moore Dty Dock standard^.^
Our dissenting colleagues continue to rely on their
dissents in Markwell and Hartz and its progeny and
would apply the test of General Electric to find the
picketing herein to be legal. Their position is in direct
conflict with the Supreme Court's decision in Denver
Building and Construction Trades Councif.j
! Building and Consrrucrion Trades Counci! of NCW Orleans, A . 2 - C / O
(Markwell and H a r k Inc.). 155 NLRB 319 (1965). enfd. 387 F.2d 79 (5th
Cir. 1967). cert. denied 391 U S . 9i4.
Local 761, Inrernariona: Union of Elecrrical, Radio & Muchrne Workers.
A F L - C I O [General Elecrric Company] v . N. L. R. 3.. 366 3 . S . 567 (1961):
Unired Sreelworkers of America, AFL-CIO, e/ a/. [Carrier Curporarion] v.
N.L.R.B., 376 US. 492 (1964).
Carpenters' Disrrirr Council of Sourhern Colorado and Irs Local Union 362
(Pace Comrrucrion Company), 222 N LRB 613 ( 1976).
' Suilork Union of rhe Pacific. A F L (Moore Dly Dock Company/, 92 NLRB
547 (1950).
' N. L. R. B. V. Denver Building and Consrrucrion Trades Council, er ai.
[Could and Preisner], 34 1 US. 675 (1 95 1).
P U : S U ~ I ~ I :a Section iD(c) of the Yational Lanor
Relarior,~ .Act. as amended. ih? Uational Labor Rela-
iions h a r d adopts as its 3r5er :ht recommended Or-
2er or' ihe .4ciministiative Law Judge ana hereby or-
ders that ihe Respondent. Sacramento Area District
n ?,ouncii af x p e n r e r s . United Brotherhood of Car-
penters & Joiners of America. .A.FL-CIO. its officers.
agents, and representa:ives, h a l l take the aciicm set
forth in the said recommended Order.
CHAIRMAN F A N N I N G and MEMBER JENKINS. dissent-
Ing:
Ma!ek Canstruction Company. hereinafter !Valek.
is engaged in generai contracting and in the develop-
ment and retail sale of homes. At all times relevant t o
this case. Malek. acting as its own general contractor
on land it owned. was developing n residential subdi-
vision and constructing model homes. Malek's own
employees-nonunion carpenters-performed fram-
ing and siding work on the model homes. A11 other
work on the houses and all ! o ~ improvements and util-
ity installations were being performed by nine sub-
contractors. all of whom empioyed unionized employ-
ees.
Respondent Union picketed both gates at the job-
site. including one reserved for employees of all the
subcontractors. The majority holds. following Mark-
well and Hurt:, supra, that the picketing from Septem-
ber 25 to October 3. 1978. of the by then adequately
established and properly maintained neutral gate.
failed to comply with the Moore D n Dock require-
ment that such action take place reasonably close to
the situs of Respondent's dispute with Malek.
We continue to adhere to our view that Genert~l
Electric and Ct~rrier, suprtl, require the Board to apply
the "related work" tests to "separate gate" picketins
on a common situs. As we have argued in our dissent\
since Markwell mid H u ~ ! : , ~ the Genera! Electric-COP
rier tests were intended by the Supreme Court to bc
of general applicability to all industries, including thc
construction industry. The test; enable the Board t o
distinguish between primary picketing. which is pro
tected by the proviso to Section 8(b)(4)(B). and sec-
ondary picketing proscribed by that section.
155 NLRa 3:9 (dissenting opmion of Members Fanning and Jenkmr
General Tearnsrers, Warehouse and Do;? Employees Union 1.oral No. I.'('
afiliu~ed xi/h !he lnrernarional Bro/herhood of Team~rers. Chuuffeureurs. W ~ I ,
housemen and Helpers o/ Amerrcu. er a/. (Ready Mixed Concrere. Inc.), .'IK)
N L R B 253 (1972) (dissenting opinion of Members Fanning and Jenk111,r
Carpenrer's Disrric: Council of Southern Colorado and 11s Local Uniotr : r ,
(Pace Construcrion Company), 222 N L R B 613 (1976) (dissenting o p i n ~ o ~ ~ ,.:
Member Fanning): Carpenters Local Union No. 470. Unired Brorherhwl
Carpenrers and Joiners of America. A F L - C I O (Mueller-Anderson, 1t1c.i. ' ' i
NLRB 315 (1976) (dissentrng opinion of Members Fanning and Jenk311 8
Carpenters Disrrict Corrncil of Milwaukee Councv and Vicinr