Nashville Bldg. Trades Council

National Labor Relations Board - Board Decisions

May 2, 1967

164 N.L.R.B. 280 (N.L.R.B. 1967)

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nashville Building and Construction Trades therefore violated Section 8(b)(4)(i) and (ii)(B) of the
Council and Markwell & Hartz, Inc. Case Act.
26-CC-106.
May 2,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On February 15, 1967, Trial Examiner Lloyd
Buchanan issued his Decision in the above -entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief , and the Charging
Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 the case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner , with the following modifications:
In affirming the Trial Examiner 's finding that
Respondent ' s picketing and related conduct at the
neutral gates evidenced a proscribed secondary
objective , we neither adopt nor pass upon his
conclusion that the work of construction
subcontractors does not relate to the normal day-to-
day operations of a struck general contractor. For in
view of our holding in Building and Construction
Trades Council ofNew Orleans , AFL-CIO (Markwell
and Hartz , Inc.), 155 NLRB 319 , that the legality of
picketing at a common situs in the construction
industry is to be determined under the Moore Dry
Dock standards (92 NLRB 547), rather than the
special guidelines laid down by the Supreme Court
in Local 761 , IUE (General Electric Corporation) v.
N.L.R.B., 366 U.S . 667, the work relationship test set
forth in the latter is inapposite herein . Respondent's
picketing of the clearly established and properly
maintained neutral gates failed to comply with the
Moore Dry Dock requirement that such action take
place reasonably close to the situs of Respondent's
dispute with Markwell & Hartz . Cf. International
Brotherhood of Electrical Workers, Local 441,
AFL-CIO (Suburban Development Co.), 158 NLRB
549, 550-552. It is thus obvious that the picketing of
such gates was plainly aimed at inducing strike
action by employees of subcontractors and others
with whom Respondent had no dispute, and
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, Nashville Building and
Construction Trades Council, Nashville, Tennessee,
its officers, agents, and representatives, shall take
the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LLOYD BUCHANAN, Trial Examiner: The complaint
herein (issued October 14, 1966; charges filed
September 15 and October 3, 1966) alleges that the
Respondent Council has violated Section 8(b)(4)(i) and
(ii)(B) of the National Labor Relations Act, as amended, 73
Stat. 519, by inducing and encouraging individuals
employed by persons engaged in commerce to engage in a
strike or refusal in the course of their employment to
perform services, and by threatening, coercing, and
restraining persons engaged in commerce; an object of
such acts and conduct being to force and require some of
such persons to cease doing business with the Charging
Party, and to force and require the latter to recognize and
bargain with the Respondent as employees' representative
although the Respondent has not been certified as such
representative and the Board has not issued an order
directing such bargaining with the Respondent or any of
its member labor organizations. The complaint is framed
in terms of violation of the reserved-gate doctrine, not of
threats or violence by pickets.
The answer denies the allegations of violation, admitting
that the Respondent posted and maintained pickets from
September 12, 1966, until partially enjoined on
October 18. The Respondent's expressed position is that it
is entitled to and seeks a prehire agreement as permitted
by Section 8(f) of the Act pursuant to which its affiliated
unions would be given an opportunity to provide or refer
local construction workers for employment.
Although the complaint runs to five pages and the
answer to eight, the issues before us are limited and leave
little if any dispute concerning the facts; and the
Respondent rested at the close of the General Counsel's
case. Such extent of agreement on the facts was first
suggested by the pleadings themselves, and inquiries
directed to counsel elicited agreement on matters which
had been formally denied. The Respondent has sought to
raise questions of administrative practice and of law in
which admittedly precedent does not support it. Four
separate defenses were early dismissed after discussion
on the record, the Respondent's right to press them later
being preserved. The defenses and the reasons for
dismissal need not now be repeated.
A hearing was held before Trial Examiner Lloyd
Buchanan at Nashville, Tennessee, on November 8, 1966.
Pursuant to leave granted to all parties, briefs have been
filed by the General Counsel, the Charging Party, and the
Respondent.
164 NLRB No. 50
NASHVILLE BLDG. TRADES COUNCIL 281
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
I. THE BUSINESS OF THE VARIOUS COMPANIES, AND THE
RESPONDENT LABOR ORGANIZATION
The facts concerning the corporate status of the
Charging Party, Jordan Pile Driving Company, and
Ramsey Electric Company, the nature and extent of their
business, and their engagement in commerce within the
meaning of the Act are admitted; I find and conclude
accordingly. I also find and conclude that, as admitted, the
Respondent is a labor organization within the meaning of
the Act.
II. THE UNFAIR LABOR PRACTICES
The relationship among the various employers herein
can be summarized as follows: The Charging Party, under
contract to construct an enlarged sewage disposal plant at
Nashville, Tennessee, the existing plant with some 60
employees continuing in operation by the city of Nashville,
has subcontracted the installation of electrical equipment
and of piling to Ramsey and Jordan, respectively. To the
time of hearing there had been no connection or
"coordination" between the-extension or new construction
and the existing sewage plant. It is admitted and I find and
conclude that, as alleged, the Respondent has had no labor
dispute with Ramsey or Jordan; it has not been certified as
collective-bargaining representative of the Charging
Party's employees; and the Board has not issued an order
directing the Charging Party to bargain with the
Respondent or any of its member organizations.
On the morning of September 13 - the Respondent
commenced to picket the 6- to 8-acre site of the
construction and the existing sewage disposal plant, with
one picket at the Garfield Street entrance, herein referred
to as the No. 1 gate, near which the Charging Party's
trailers and offices were located, and another picket
around the corner at the main entrance on Second Avenue
North, herein referred to as the No. 2 gate. A third gate
and entrance, herein referred to as the No. 3 gate, is
located further down Second Avenue North, about 350 feet
from No. 2. The picket signs indicated that they were
against the Charging Party and because of unfair labor
practices.
On the evening of September 14 the Charging Party
placed a sign at No. 1 gate, designating that entrance as
reserved for its own employees and its suppliers and their
employees. Whether or not its decision to use No. 1 had
been made earlier as testified, counsel was now consulted
and the reservation made patently to come within the
"reserved gate" doctrine.' The 10 or 12 employees of the
Charging Party were promptly instructed by the
superintendent to use No. 1 only, as were its suppliers,
and an employee was designated to direct to No. 1 gate
anyone with business with the Charging Party who sought
to use another approach. There is no issue concerning the
nature and posting of the signs or the sufficiency of their
language, which under the circumstances need not be set
forth; question was raised as to whether the reservations
were in fact maintained or enforced, but we have no
evidence to contradict or to deny that they were.
Also on September 14 the Charging Party placed a sign
at No. 2 and No. 3 gates, designating those entrances as
reserved for persons other than the Charging Party's
employees and suppliers. (Ramsey, we are told, has had
three employees on this job.) All signs as described were
maintained and the evidence is clear that separation was
made and continued between the Charging Party as
primary employer with whom the Respondent was in
dispute and its employees and suppliers on one hand at
gate No. 1, and Jordan and Ramsey as secondary
employers, among others, and their employees and
suppliers. There is no evidence of violation of the
reservations and instructions concerning use of separate
gates.
Thereafter on September 15 as a Ramsey truck with two
Ramsey employees approached gate No. 2, one of two
pickets at No. 1 quickly drove to No. 2, arriving before the
truck did. The picket jumped out, waved his sign, and
called out, "Stop. You can't come in here." After speaking
with the Ramsey driver for a short time, the picket with his
sign started to walk back and forth in front of that No. 2
entrance. At this point the Charging Party's general
superintendent arrived and asked the picket whether he
was going to stop the truck from entering at that gate. The
picket replied in a loud voice that he was going to stop the
truck from going in at any entrance, and he continued to
walk back and forth in front of the gate. The Ramsey
driver thereupon turned his truck around and drove off.
On September 20 a supplier arrived at gate No. 1 with
material for Jordan. The Charging Party's general
superintendent directed the driver to gate No. 2. The same
picket thereupon left No. 1 and arrived at No. 2, where he
joined the picket already there, before the truck got there.
At that place the general superintendent asked whether
the picket was going to stop the driver from entering, and
the reply was again that he was going to stop the truck
from going in at any entrance. This picket then went to
gate No. 3, where there had been no picket; the
truckdriver, on arrival there, turned around and left the
site.
Apparently on another occasion in September, when
two trucks with timber piling for Jordan arrived at No. 1
gate, the general superintendent spoke to the drivers, one
of whom then drove to No. 2 and the other to No. 3, both of
which were picketed. The latter was stopped by the
picket, and he thereupon drove to No. 2, where both trucks
entered; the gate was being picketed but the trucks were
not stopped there. Another incident indicating
maintenance and policing of separate gates occurred on or
about September 27 when a truck loaded with pipe for the
city's maintenance operation of the existing plant and not
at all for this new construction job was stopped by the
picket at gate No. 1. The Charging Party's engineer on the
site, checking the bill of lading, directed the driver to the
No. 3 gate, where there was no picket. The driver had
declared that he would not cross a picket line, and he
unloaded the pipe outside gate No. 1 after the picket there
said that he would go to No. 3 if the truck were driven
there. Here were unlawful, if anticipatory, inducement and
encouragement in connection with reserved gate No. 3.
With issuance of the injunction on October 18, the
Respondent removed its pickets from gates 2 and 3,
continuing its picketing of the gate reserved for the
Local 761, IUE (General Electric Corporation) v N.L.R.B., Charging Party, its employees and suppliers. We need not
366 US 667 . concern ourselves , there being no evidence of
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abandonment by the Charging Party, with its subsequent
maintenance of the reserved gates as evidenced by later
letters and telegrams to its suppliers. The evidence
indicates such maintenance during the earlier period when
violation is claimed. The different steps later taken do not
add to the proof of relevant maintenance . Nor need we
concern ourselves, inducement and encouragement
having been shown, with testimony concerning a slight
delay in Jordan's work and the complete cessation of work
by Ramsey between September 15 and October 31.
A basic argument made by the Respondent is that the
Charging Party's work here cannot be separated from that
of others, including Ramsey and Jordan and indeed of the
city of Nashville itself in the latter's operation of the
existing plant; and that the reserved-gate doctrine does not
apply. But the fact is that the Charging Party's work is not
performed by sewage plant maintenance employees, or
related to operation of a sewage treatment plant; it
consists of alterations to the existing plant in the form of
construction of a new or additional plant. Nor does such
construction impinge upon the work of sewage plant
employees assigned to separate gates. Further, as
testified, the Charging Party will renovate existing
equipment without the sewage plant personnel "having
anything to do with it." I find and conclude that the work
of the Charging Party is separate, apart, and different
from the operation of the existing plant by city of Nashville
employees; and also from the electrical and pile-driving
work subcontracted to Ramsey and Jordan.
The Respondent, in its expressed concern for
employment of local construction workers, may not act as
a freewheeling surd: it may not insist on a relationship
which does not exist. The Act still applies. I find and
conclude that the Respondent has induced and
encouraged, threatened, coerced, and restrained, as
alleged and hereinabove set forth, an object thereof being
to force and require persons engaged in commerce to
cease doing business with the Charging Party and to force
and require the latter to recognize and bargain with the
Respondent, in violation of Section 8(b)(4)(i) and (ii)(B) of
the Act.2 In the language of the Carrier case3 cited by the
Respondent, unless such language be applied to all
activity performed by construction subcontractors and to
operations of the owner of the existing plant, the picketing
was not directed against the "day-to-day service essential
to the [Charging Party's] regular operations."
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the Respondent, Nashville Building and
Construction Trades Council, Nashville, Tennessee, its
officers, representatives, and agents, shall:
1. Cease and desist from inducing or encouraging
employees of Jordan Pile Driving Company, Ramsey
Electric Company, or any other employer, to engage in a
strike or refusal in the course of their employment, to
perform services, or by threatening, coercing, or
restraining Jordan or Ramsey or any other person engaged
in commerce, where an object thereof is to force or require
any employer or other person to cease doing business with
Markwell & Hartz, Inc., or to force or require the latter to
recognize and bargain with the Respondent although the
Respondent has not been certified as employees'
collective-bargaining representative and the Board has not
issued an order directing such bargaining.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Post at its own and its member labor organizations'
offices and meeting halls and at all other places where
notices are customarily posted to member organizations
and their employee members copies of the attached notice
marked "Appendix."4 Copies of said notice, to be
furnished by the Regional Director for Region 26, shall,
after being duly signed by the Respondent's
representative, be posted by it and its member
organizations immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
their members are customarily posted. Reasonable steps
shall be taken by the Respondent and its member
organizations to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Furnish to the Regional Director for Region 26
signed copies of the attached notice for posting by
Markwell & Hartz, Jordan, and Ramsey, said employers
being willing, in places where they customarily post
notices to their employees.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.5
2 See Building and Construction Trades Council of New
Orleans, AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319
1 United Steelworkers of America, AFL-CIO (Carrier Corp) v
N.L.R.B , 376 U S. 492, 499.
4 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
5 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 26, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL OUR MEMBER ORGANIZATIONS, THEIR
MEMBERS, AND ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our member
organizations , their members, and all employees that:
WE WILL NOT induce or encourage employees of
Jordan Pile Driving Company, Ramsey Electric
Company, or any other employer, to engage in a strike
or refusal in the course of their employment, to
perform services, or threaten, coerce, or restrain
Jordan, Ramsey, or any other person engaged in
commerce, where an object thereof is to force or
require any employer or other person to cease doing
business with Markwell & Hartz, Inc., or to force or
require Markwell & Hartz, Inc., to recognize and
bargain with us although we have not been certified as
employees' collective-bargaining representative and
NASHVILLE BLDG. TRADES COUNCIL 283
the Board has not issued an order directing such
bargaining.
NASHVILLE BUILDING AND
CONSTRUCTION TRADES
COUNCIL
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered , defaced,
or covered by any other material.
If members or employees have any question concerning
this notice or compliance with its provisions , they may
communicate directly with the Board's Regional Office,
746 Federal Office Building, 167 North Main Street,
Memphis, Tennessee 38103 , Telephone 534-3161.