Northeastern Indiana Bldg. & Const. Trades, Etc.

National Labor Relations Board - Board Decisions

Sep 4, 1964

148 N.L.R.B. 854 (N.L.R.B. 1964)

854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, Boston
Five Cents Savings Bank Building , 24 School Street, Boston , Massachusetts, Tele-
phone No. 523-8100, if they have any question concerning this notice or compliance
with its provisions.
Northeastern Indiana Building and Construction Trades Coun-
cil; 1 Brotherhood of Painters , Decorators and Paperhangers
of America , AFL-CIO , Local 469; International Hod Carriers,
Building and Common Laborers Union of America , Local 213,
AFL-CIO; United Brotherhood of Carpenters and Joiners of
America, Local No. 232, AFL-CIO; 2 United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
.Industry of the United States and Canada, Local No. 166,
AFL-CIO ; International Association of Sheet Metal Workers,
Local No. 156, AFL-CIO; International Association of Bridge,
Structural and Ornamental Iron Workers , Local 147, AFL-
CIO; 3 International Brotherhood of Electrical Workers, Local
305, AFL-CIO; Bricklayers , Masons and Plasterers Interna-
tional Union of America , Local No. 2, AFL-CIO; 4 and Cent-
livre Village Apartments.' Case No. 13-CC-4O1-f2. September 4,
1964
DECISION AND ORDER
On February 28, 1964, Trial Examiner Benjamin B. Lipton issued
his Decision in the above-entitled proceeding, finding that all the
above-named Respondents, except Bricklayers, had engaged in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in his at-
tached Decision. The Trial Examiner further found that the Brick-
layers had not engaged in the unfair labor practices alleged in the
complaint and recommended dismissal as to it. Thereafter, said Re-
spondents, except Bricklayers, and the General Counsel filed excep-
tions and supporting briefs, and the Charging Party filed a brief in
support of the Trial Examiner's Decision.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.6 The Board has considered the Trial Ex-
Herein called Council.
Herein called Carpenters
Herein called Iron Workers.
Herein called Bricklayers.
s Herein called Centlivre.
e For purposes of this case , we need not pass upon Respondents ' contention that the
Trial Examiner erred in excluding certain evidence bearing upon the nonpayment of
AFL-CIO wages on the Cintlivre project. As the record shows that the purpose of picket-
ing was not solely to protest noncompliance with prevailing conditions of employment,
the truth of the legend on the picket sign has no material bearing on the issues present
herein.
148 NLRB No. 93.
NORTHEASTERN INDIANA BLDG. & CONST. TRADES, ETC. 855
aminer's Decision, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the additions and modifica-
tions noted below.
1. The Trial Examiner, relying on the Board's holding in the Col-
son and Stevens case,' found that Respondents had violated Section
8(b) (4) (A) by picketing to compel Centlivre, an employer engaged
in the construction industry, to enter into a "hot cargo" agreement
which is lawful under the first proviso to Section 8 (e) of the Act. For
the reasons set forth hereinafter, we have decided to overrule that part
of the Colson and Stevens decision upon which the Trial Examiner re-
lied. Accordingly, we do not adopt the Trial Examiner's finding of
an 8(b) (4) (A) violation.
In Colson and Stevens, the Board, after analyzing the interplay be-
tween Section 8(b) (4) (A), 8(e), and the construction industry pro-
viso to the latter,' concluded that Congress intended to make lawful a
voluntary agreement relating to the contracting or subcontracting of
work to be done at a construction site, but that the use of economic
force to compel an employer to enter into such an agreement violated
Section 8(b) (4) (A). Subsequent to the issuance of Colson and Stev-
ens, however, United States Courts of Appeals for three separate cir-
cuits have considered and uniformly rejected the above analysis and
conclusion.' In essence these cases hold that the Board failed to give
sufficient scope to the construction industry proviso to 8(e). As stated
by the court in the Calhoun Drywall case,10 supra, at 537:
Secondary subcontracting clauses in the construction industry are
lawful under the proviso to Section 8(e), and economic force may
I Construction, Production & Maintenance Laborers Union Local 383, AFL-CIO, at al.
( Colson and Stevens Construction Co., Inc.), 137 NLRB 1650.
8 Section 8 ( e), in material part, reads as follows:
It shall be an unfair labor practice for any labor organization and any employer
to enter into any contract or agreement, express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling , using, selling , trans-
porting or otherwise dealing in any of the products of any other employer, or to
cease doing business with any other person, and any contract or agreement entered
into heretofore or hereafter containing such an agreement shall be to such extent
unenforceable and void : Provided, 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 or subcontracting of work to be done at the site
of the construction , alteration , painting, or repair of a building , structure, or other
work . . . . [Emphasis supplied.]
0 Construction, Production & Maintenance Laborers Union , Local 383 , et al. v. N L.R.B.
(Colson and Stevens Construction Co ), 323 F. 2d 422 (C.A. 9) ; Essex County and
Vicinity District Council of Carpenters and Millwrights , United Brotherhood of Car-
penters , etc (Associated Contractors of Essex County, Inc.) v. NL.R.B , 332 F. 2d 636
(C A. 3) ; Orange Belt District Council of Painters No 48, AFL-CIO, et al. (Calhoun
Drywall Co .) v. N.L.R.B., 328 F. 2d 534 (C A.D C.) ; Building and Construction Trades
Council of San Bernardino and Riverside Counties , et al. ( Gordon Fields ), 328 F 2d
540 (C.A.D.C.). See also Local Union No. 48 of Sheet Metal Workers v. Hardy Corp.,
332 F 2d 6'82 (C.A. 5).
is Orange Belt District Council of Painters No. 48, AFL-CIO, at al. (Calhoun Drywall
Co) v. N.L R B., supra.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be used to obtain them notwithstanding Section 8(b) (4) (A), be-
cause Section 8(b) (4) (A) incorporates that proviso by reference.
In view of the unanimous court rejection of the Board's Colson and
Stevens rationale, the Board has reexamined its position and now
agrees with the court interpretation of the statute. We therefore find,
contrary to the Trial Examiner, that Respondents' picketing to, ob-
tain a contract clause which is within the construction industry pro-
viso to Section 8(e) 11 did not violate Section 8(b) (4) (A). Accord-
ingly, we shall dismiss that portion of the complaint which alleges a
violation of that section of the Act.
2. At the same time, we agree with the Trial Examiner, on the facts
of this case, that Respondents' picketing was violative of Section
8(b) (4) (i) and (ii) (B) of the Act. In doing so, we do not adopt the
Trial Examiner's rationale, which was based on decisions we have now
overruled, but rest our decision on our finding that the picketing had
as one of its objects forcing or requiring Centlivre to cease doing busi-
ness with Kimes & Docks, herein called K R K, a carpentry subcon-
tractor having no agreement with Respondent Council or its affiliated
craft locals.
The record amply demonstrates that, in addition to the lawful ob-
ject of securing the "hot cargo" clause, the picketing also had as an
object forcing the removal of K & K from Centlivre's construction
project. Thus, K & K's presence on the project prompted Respond-
ents' decision to picket the jobsite. The message on the picket signs
identified K & K as the primary employer, indicating that its em-
ployees were not affiliated with the Council and were working under
employment conditions less favorable than those enjoyed by, AFL-
•CIO,members. At the October 8 meeting, called by Centlivre to deter-
mine what could be done to have operations resumed at the project,
the Council indicated it would not be satisfied by assurances that
K & K would pay union wages. Rather, it requested also the execu-
tion of a clause providing that only signatories to a contract with Re-
spondents (a condition which K & K apparently could not validly
meet) 12 would be permitted to work on the construction site.l3 These
facts, viewed in the light of Respondents' desire to retaliate because of
K & K's past rejection of the Carpenters' demand for representation
"Neither the General Counsel nor the Charging Party disputes the proviso's applica-
tion to the clauses in question. Accordingly, there being no issue before us as to the
validity of such clauses, we assume, for purposes of this case, that they are within the
proviso and lawful under 8(e).
12 In May or June 1963, Carpenters unsuccessfully demanded recognition from K & K,
and then filed a representation petition with the Board seeking a unit of K & K's em-
ployees Following dismissal of said petition , K & K recognized an independent union.
i3 The agreements provided, inter alsa„ that ". . . only contractors having contracts
with the NORTHEASTERN INDIANA BUILDING AND CONSTRUCTION TRADES
COUNCIL and its associate local unions will be used in the construction of . . . projects
erected within the common jurisdiction of the parties hereto "
NORTHEASTERN INDIANA BLDG. & CONST. TRADES, ETC. 857
rights and its subsequent recognition of a union not affiliated with the
AFL-CIO, persuade us that at all times the Respondents sought the
removal of K & K from the project.14
We are persuaded that picketing by a union in the construction in-
dustry to interrupt business relations between a neutral general con-
tractor and an identified subcontractor constitutes a violation of Sec-
tion 8(b) (4) (B) notwithstanding the fact that the picketing also has
a lawful concurrent objective of securing a "hot cargo" agreement
permitted by the 8(e) proviso.
The court decisions in which we have acquiesced above state, and we
agree, that under Section 8(b) (4) (B) lawful "hot cargo" clauses
"may be enforced only through lawsuits, and not through economic
action." n If Respondents had had such a clause with Centlivre and
pursuant thereto had, by picketing, sought to have Centlivre cease
doing business with K & K, the picketing would have violated
8(b) (4) (B). No different result is called for because Respondents by
their picketing seek simultaneously to obtain a lawful "hot cargo"
clause and termination of business relations with a primary employer,
K & K, rather than first the contract and then the termination. It is
immaterial that one of the objects of the picketing was lawful, if an-
other object was unlawful. "It is not necessary to find that the sole
object of the strike was that of forcing the contractor to terminate.the
subcontractor's contract." 16
This result is in accord with the intent of Congress. There is no
doubt that in enacting the 8(e) proviso Congress intended that pre-
existing cases be preserved as governing law in applying Section
8(b) (4).17 -Accordingly, where, as here, the evidence indicates that an
14 We reject the Respondents' contention that no 8 ( b) (4) (B) objective has been estab-
lished. It is of no relevance that K & K could have continued on the project , even if
Centlivre had executed the general contractor agreement , by withdrawing recognition
from the independent union and adopting the Council 's contract . Under settled law even
a "conditional" object is proscribed by Section 8(b) (4) (B ) ( Retail Clerks Union, Local
770, AFL-CIO, and Retail Clerks International Association, AFL-CIO ( Food Employers
Council, Inc.), 145 NLRB 307), where the primary employer , as in the case of K & K,
is in existence and identified ( Local 47; International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, AFL, et al. ( Texas Industries , Inc ), 112
NLRB 923, 925 , footnote 2, enfd 234 F. 2d 296 (CA. 5)).
15 Orange Belt District Council of Painters No. 48, AFL-CIO, et al. (Calhoun Drywall
Cc) v. NLRB , supra, at 537.
16 N L R.B. v. Denver Building and Construction Trades Council, et al. ( Gould &
Preisner), 341 U.S . 675, 689
17 The intent of Congress to retain the then existing law in connection with secondary
boycotts in the construction industry is apparent from the following statement by the
House conferees:
The committee of conference does not intend that this proviso should be con-
strued so as to change the present state of the law with respect to the validity of
this specific type of agreement relating to work to be done at the site of the con-
struction project, or to remove the limitations which the present law imposes with
respect to such agreements . Picketing to enforce such contracts would be illegal
under the Sand Door case (Local 1976 , United Brotherhood of Carpenters [and
Joiners of America, AFL, et at (Sand Door & Plywood Co ) . ] v. N.L.R B ., 357 U.S.
93 (1958) ). To the extent that such agreements are legal today under Section
8(b) (4) of the National Labor Relations Act, as amended , the proviso would pre-
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
object of picketing, although assertedly directed at obtaining a sub-
contracting clause valid under the construction industry proviso to
8(e), is to cause a cessation of business between a neutral general con-
tractor and an existing and identified nonunion subcontractor, we
shall continue to find a violation of Section 8(b) (4) (B). In sum, we
hold that the building construction proviso to 8(e) has no bearing
upon the determination for the purposes of Section 8 (b) (4) (B) of
the validity of the object of strike or picketing activity, except that a
strike or picketing to secure a clause protected by that proviso does not
alone establish the existence of a proscribed object.
For the above reasons, we find, in agreement with the Trial Exam-
iner, that by picketing the Centlivre project with an object of forcing
or requiring Centlivre to cease doing business with K & K, Respond-
ents 1s have engaged in unfair labor practices within'the meaning of
Section 8 (b) (4) (i) and (ii) (B) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order,19 the Order recom-
mended by the Trial Examiner, with the following deletions, and
orders that Respondents, their officers, agents, and representatives,
shall abide by the terms of the Trial Examiner's Recommended Order
as modified below :
1. The Recommended Order is modified by deleting paragraph 1(a),
and renumbering paragraph 1(b) as 1(a) . -
vent such legality from being affected by Section 8(e). The proviso applies only to
Section 8 ( e) and therefore leaves unaffected the law developed under Section
8(b)(4). The Denver Building Trades case and the Moore Drydock cases would
remain in full force and effect. The proviso is not intended to limit, change, or
modify the present state of the law with respect to picketing at the site of a con-
struction project . Restrictions and limitations imposed upon such picketing under,
present law as interpreted, for example, in the U . S. Supreme Court decision in the
Denver Building Trades case would remain in full force and effect . . . . [Emphasis
supplied.] House Conference Report on Labor-Management Reporting and Disclosure
Act of 1959 , House Report 1147 , 86th Cong., 1st session , pp. 39-40.
18 There is no merit in the Respondents ' contention that the evidence fails to establish
that the craft unions affiliated with the Council and named as Respondents herein were
responsible for the alleged unfair labor practices . The record shows that the business
agents of said locals , excepting Brown of the Iron workers who was present at the
picketed situs on September 23, participated in the decision to picket the Centlivre proj-
ect; that the various business agents participated in discussions relating to financial
support for and administration of the picket line; and that all were in attendance at the
October 8 meeting with representatives of Centlivre when the Council requested the con-
tractor and subcontractor agreements . On these facts and the record as a whole we are
persuaded that the craft locals affiliated with the Council , through the actions of their
business agents, participated in, ratified , and condoned the unlawful conduct involved
herein.
"As the record shows that the picketing was also designed to enforce Respondents'
demand that all subcontractors on the Centlivre project execute subcontractor agree-
ments, we agree with the Trial Examiner that it will effectuate the purposes of the Act
to issue a broad order in this case.
NORTHEASTERN INDIANA BLDG. & CONST. TRADES, ETC. 859
2. The notice 20 attached to the Trial Examiner's Decision marked
"Appendix" is amended by deleting the first paragraph thereof.
'° The new address for Region 13 is* 881 U S Courthouse and Federal Office Buidling,
219 South Dearborn Street , Chicago , Illinois, Telephone No. 828-7572
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented and participating , was heard before
Trial Examiner Benjamin B . Lipton in Fort Wayne , Indiana, on December 2, 1963,1
upon a complaint by the General Counsel 2 that the named Respondents engaged in
picketing a construction project in violation of Section 8(b) (4) (i ), ( ii) (A) and (B)
of the Act. Opportunity was afforded the parties to argue orally on the record and to
file briefs . Briefs filed by all parties have been duly considered.,
Upon the entire record in the case, and from my observation of the witnesses, in-
cluding their demeanor on the , stand , I"make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
Centlivre Village Apartments , the Charging Party, herein called Centlivre , is a co-
partnership, composed of Aron Drost , Harold Levine , Andrew Rosenfeld , and Walter
Zaremba. It has its principal place of busine 'ss in Fort Wayne, Indiana, where it is
engaged as a general contractor in the building and construction industry. Since
May 1963, it has been engaged in a project of constructing , at Westbrook Drive in
Fort Wayne, Indiana, six apartment buildings valued at approximately $7,000,000.
In connection with this project , scheduled for completion in 1965, Centlivre has or
will cause to be shipped directly into the State of Indiana from points outside the
State materials valued in excess of $250,000 . Kimes & Kocks , a copartnership, is
engaged at Fort Wayne, Indiana, as ' a general and carpentry contractor in the build-
ing and construction industry . I find that these companies are engaged in an "in-
dustry affecting commerce " within the meaning of Section 8(b) (4),3 that the Board's
jurisdictional standards are met, and that it will effectuate the policies of the Act to
assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
The principal Respondent , Northeastern Indiana Building and Construction Trades
Council, herein called the Building Trades Council , has its constituent members the
Respondents , herein called Painters Local 469, Laborers Local 213, Carpenters Local
232, Plumbers Local 166, Sheet Metal Workers Local 156 , Iron Workers Local 147,
and Electrical Workers Local 305. The remaining Respondent , herein called Brick-
layers Local 2, is not a member of or affiliated with the Building Trades Council.
All Respondents admit, and I find , that each of them is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The essential facts
In May 1963 construction was commenced on the Westbrook Drive project. As
general contractor , Centlivre itself employed six to nine laborers , carpenters, and
cement finishers. It subcontracted particular craft operations to various firms in the
Fort Wayne area. Kimes & Kocks was awarded the carpentry subcontract and com-
menced work on the project on September 16.
Prior thereto , in the summer of 1963, Respondent Carpenters Local 232, follow-
ing organizational efforts, made a demand for recognition upon Kimes & Kocks,
which was refused . Carpenters Local 232 then filed with the Board a petition for
certification as representative of Kimes & Kocks' employees , which was subse-
i All dates herein are in the year 1963 , unless otherwise specified
2 The original charge was filed on October 11 and served on October 15 and the com-
plaint, based upon an amended charge , was Issued on November 13.
3 Sheet Metal Workers International Association , Local Union No. £99, AFL-CIO and
Allen Stout , its Agent ( S. M. Kisner and Sons) , 131 NLRB 1196.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quently dismissed for lack of jurisdiction. Thereafter, Kimes & Kocks executed a
collective-bargaining contract with Independent Building Trades Union covering these
employees.
On September 20, a special meeting was held of the executive board of the Build-
ing Trades Council, which consisted of the business agents of each of its affiliated
craft locals. After a discussion concerning the carpentry contract being let to Kimes
& Kocks at the Centlivre job, it was voted unanimously to picket the project. On
Monday, September 23, picketing was commenced at two entrances to the project by
three pickets, which at a later date was reduced to one picket at the main entrance.4
The picket signs displayed the legend, viz:5
THE EMPLOYEES OF KIMES AND KOCKS ARE NOT
AFFILIATED WITH THE NORTHEASTERN INDIANA
BLDG & CONSTRUCTION TRADES COUNCIL AND
ARE WORKING FOR- SUB-STANDARD WAGES AND
WORKING CONDITIONS AS COMPARED TO THE
MEMBERS OF AFFILIATED AFL-CIO UNIONS
THIS IS AN INFORMATION PICKET AND IS
NOT INTENDED TO INDUCE ANYONE TO STOP
WORKING ON THIS PROJECT .6
The picketing caused a stoppage of virtually all work on the Centlivre project?
On October 8, at the request of Centlivre, a meeting was held between representa-
tives of Respondents and Centlivre. Neither Kimes & Kocks nor Bricklayers Local
No. 2 was present or represented. The meeting took place in the office of Howard
Chapman, attorney for Centlivre. In addition to Chapman, on behalf of Centlivre,
there were Partners Aron Drost and Harold Levine; Walter Zaremba, representing
his father; a partner; Harley Graham, project superintendent; and Richard F. Baird,
Jr., attorney. Appearing for Respondents were Barry C. Tremper, attorney; Thomas
Morningstar, president of Building Trades Council and business agent of Painters
Local No. 469; Hanley Gorrell,- business agent for Electrical Workers Local No. 305;
John Parish, business agent for Laborers Local No. 213; Al Rasp, business agent for
Sheet Metal Workers Local No. 156; George Coleman, business agent for Plumbers
Local No. 166; Ray Brown, business agent for Iron Workers Local No. 147; and
Henry Rodenbeck, business agent for Carpenters Local No. 232.
Reduced to essentials, the discussion at the meeting consisted as follows: Chap-
man inquired what Centlivre could do to have the pickets removed. Tremper re-
plied that the picket signs indicated what the Respondents wanted. The question was
asked whether the picketing would be stopped if Centlivre gave assurances that Kimes
& Kocks are paying or will pay union wages. Tremper said that "would help," but
they also wanted a guarantee in writing that union wages would continue to be
paid-by all the subcontractors and not just for the carpenters. Chapman asked
what kind of writing he meant. At this point, Tremper produced typewritten origi-
nals of two different contracts, which he said would have to be signed.
i The cost of picketing was paid by the Building Trades. Council. The picketers were
paid their union scale At the regular meeting of the Building Trades Council on Octo-
ber 2, it was voted to have the delegates ask their respective constituent locals for a
donation to the Building Trades Council to help defray the cost of the picketing. As was
shown, several of these locals made donations in addition to paying their regular assess-
ments. There is no dispute that the Building Trades Council and its member locals, i.e.,
all Respondents excepting Bricklayers Local 2, were responsible for the picketing
G The picketing, which was conducted from 7 a m to 3 or 4 p in., Monday through
Friday, continued until October 25 In conjunction with a Section 10(1) proceeding
filed by the General Counsel in the U S district court, a stipulation was executed on
November 7 in which Respondents agreed not to engage in picketing and certain other
conduct proscribed in Section 8(b) (4) of the Act pending final disposition by the Board
of the instant charge.
6 The second paragraph was in small type, about one-third the size of the type in the
first paragraph. The first paragraph was in block type in black ink, except that the
words "KIMES AND COX" and "NORTHEASTERN INDIANA, BLDG & CONSTRUC-
TION TRADES COUNCIL" were in red ink
7 Excepting the employees of Kimes & Kocks, substantially all other employees on the
project refused to cross the picket line About October 20, work was resumed by some of
the bricklayers and Centlivre's own employees; and until October 20, with minor excep-
tions, no deliveries by suppliers were made to the construction site
NORTHEASTERN INDIANA BLDG. & CONST. TRADES, ETC. 861
One of these documents, captioned "Agreement," and intended for the signature
of a general contractor, provided in part:
Article V. The Employer represents that it is the General Contractor and
is responsible for the general construction and letting of certain subcontracts
specified in its agreement with the owner. It agrees not to sublet any work
commonly done by the various craft unions who are members of the NORTH-
EASTERN INDIANA BUILDING AND CONSTRUCTION TRADES COUN-
CIL, to any person, firm, corporation or asociation not having a collective
bargaining agreement with the NORTHEASTERN INDIANA BUILDING
AND CONSTRUCTION TRADES COUNCIL or the local craft union affiliated
with the NORTHEASTERN INDIANA BUILDING AND CONSTRUCTION
TRADES COUNCIL which commonly has jurisdiction over the class of work.
It is further agreed that no journeyman or apprentice shall be required to work
on any projects where other than craft union personnel affiliated with the afore-
said Council are employed.
Article VI. The Employer agrees that only contractors having contracts
with the NORTHEASTERN INDIANA BUILDING AND CONSTRUCTION
TRADES COUNCIL and its associate local unions will be used in the con-
struction of its projects erected within the common jurisdiction of the parties
hereto.
The second document was identical with the first, except that it carried the addi-
tional caption of "Sub-Contractor," and provided:
Article V. The Employer represents that it is engaged in the Construction
Industry as a Sub-Contractor or Contractor and under its agreement with the
Owner or General may be responsible for the letting of some work to others.
It agrees not to. sublet any work commonly done by the various craft unions
who are members of the NORTHEASTERN INDIANA BUILDING AND
CONSTRUCTION TRADES COUNCIL, to any person, firm, corporation or
association not having a collective bargaining agreement with the NORTH-
EASTERN INDIANA BUILDING AND CONSTRUCTION TRADES
COUNCIL or the local craft union affiliated with the NORTHEASTERN
INDIANA BUILDING AND CONSTRUCTION TRADES COUNCIL which
commonly has jurisdiction over the class of work. It is further agreed that no
journeyman or apprentice shall be required to work on any projects where
other than craft union personnel affiliated with the aforesaid Council are
employed.
Article VI. The Employer agrees that only contractors having contracts with
the NORTHEASTERN INDIANA BUILDING AND CONSTRUCTION
TRADES COUNCIL and its associate local unions will be used in the con-
struction of its projects erected within the common jurisdiction of the parties
hereto.
After examining these documents, Chapman said he could find nothing therein
which specifies the wages to be paid. Tremper said he would supply copies of con-
tracts other employers have with the craft locals and the Building Trades Council,
and these would be incorporated by reference. Tremper clarified that Centlivre
was required to have its subcontractors execute the second contract. Toward the
close of the meeting, Attorney Baird restated the conditions which were demanded
and Tremper confirmed that if the contracts were signed , the pickets would then
be called off. Chapman took the contracts "for study" and the meeting adjourned.8
No firm, at least in the Fort Wayne area, had therefore, signed either of these con-
tracts. And the contracts were never withdrawn or retracted from Centlivre.
8 These findings as to the October 8 meeting are based upon the credited testimony of
Chapman, as corroborated by Baird, Drost, Zaremba, Levine, and Graham Morningstar
and Coleman, called for Respondents, gave rather vague testimony concerning the meet-
ing. In certain significant respects their testimony supports the version and position of
the General Counsel For example, Coleman testified that Tremper said that signing of
the contracts would "help" in removing the pickets. And Morningstar stated that he had
given the contracts to Tremper a few days before the meeting and he believed them to be
legal. The essential conflict stems from the apparent testimony of Respondents' wit-
nesses that these contracts were produced by Tremper at the specific request of Centlivre's
representatives for purposes of study. Attorney Tremper did not testify. To the extent
of variance with the findings above, the testimony of Morningstar and Coleman is not
credited.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concerning the responsibility of Bricklayers Local No. 2, the evidence produced
and relied on by the General Counsel was substantially as follows: On September 21,
she Building Trades Council sent a wire to Business Agent Linnemeyer of Brick-
layers Local 2, stating that "BUILDING TRADES PICKETS WILL BE ON
•CENTLIVRE APARTMENT PROJECT THIS MONDAY AT 6:30 A.M." 9 Lin-
nemeyer then called the masonry subcontractor and conveyed to him this informa-
:tion. Linnemeyer testified that he had previously asked the Building Trades Coun-
cil to be informed in advance of any picketing, and that his purpose was to allow
the subcontractor to place the men on other jobs and to avoid loss of time by those
men who did not wish to cross the picket line. As no basis appears for finding
that Bricklayers Local 2, not a member of the Building Trades Council, participated
or was implicated in any way in the decision to picket, the picketing, the meeting
of October 8, or in any of the conduct alleged in violation, I will recommend that
the complaint against this Respondent be dismissed.
B. Concluding findings
Initially, it should be noted that the General Counsel alleges Section 8(b) (4)
violations as occurring only from the time of the October 8 meeting, supra. I find
it unnecessary, therefore, to resolve certain factual conflicts as to whether Respond-
ents were truly aware of substandard wages and conditions at Kimes & Kocks to
support the statement on the picket sign.10 Respondents do not make clear the
meaning of their contention that the picketing was "informational" in character.
And they do not invoke or refer to a proviso to Section 8(b) (4) which excepts from
the prohibition of that section a specified type of publicity-"other than picketing."
At the hearing and in their brief, Respondents argue that any refusals to cross the
picket line were matters of independent and voluntary choice of the employees and
suppliers, and that the evidence does not demonstrate any coercion on Respondents'
part. This entire position, I find, is devoid of merit.
Whatever the effect, for purposes of Section 8(b) (4), of a purely "information
picket" at a construction project, such was clearly not the case here, as revealed
by the following factors, inter alia: Respondent Carpenters Local 232 had earlier
been seeking recognition as bargaining agent for the Kimes & Kocks employees. At
the special meeting of the Building Trades Council, when the decision was made
to picket the Centlivre project, the minutes show only a discussion over the car-
pentry subcontract being given to Kimes & Kocks. On the picket sign the first
statement made was that the employees of Kimes & Kocks were not affiliated with
the Building Trades Council-reasonably implying in the context an immediate
recognitional object. The language in fine print at the bottom of the picket sign-
that this was an "information picket" and not intended to induce anyone to stop;
working-would scarcely serve to insulate the picketing from other evidence of
its real purposes and -intended effects. Beyond the picket sign itself, there is not
indication whatever that Respondents attempted to dissuade anyone from refusing
to cross the picket line.ll An impelling fact is, of course, the actual effect of the
picketing in causing a complete stoppage of work on the project. The very circum-
stance of picketing will "exert influences," 12 particularly at a construction site where
it commonly has a "signal" effect; and it is certainly well' settled by now that such
picketing for an object' proscribed iii the Act amounts to the statutory coercion.13
Further, -any contention that, by virtue, of the "`information picket'," the picketing
here was -primary and privileged is rejected. The unlawful objects',of Respond-
ents are well evidenced as-a, result of the October 8 meeting'and of the' contracts
demanded in -order that the picketing be' stopped. ' Both -contracts clearly demon-
strate proscribed objects in, providing that general contractors and subcontractors
will not do business with "any person, firm,'corporation, or association" which does
not have a contract with the Building Trades Council and its associate local unions
having craft jurisdiction, and that members of the Respondent Locals will not be
e Similar advice was sent by the Building Trades Council to certain other nonmember
locals, e.g., the Teamsters, assertedly upon the specific advance requests of such locals
10 Cf. Construction, Shipyard and General Laborers Local 1207, AFL-CIO;' at al.
(Alfred S. Austin Construction Company, Inc.),' 141 NLRB'283.
"'Indeed, the telegrams sent out by the Building Trades Council to certain nonaffiliated
locals notifying them of the decision to picket Centlivre would appear rather 'to reflect a
desire to have the members of these locals honor the picketing.
12Hiighes v Superior Court, 339 U.S. 460, 465. '
`13 rnterndtional'Brotherhood of El'ectrieal Workers, Local 501, et• al. (Samuel Langer) v.
N L.R B , 341 U.S. 694.
NORTHEASTERN INDIANA BLDG. & CONST. TRADES, ETC. 863
required to work on projects which employ craft personnel other than those af-
filiated with the Building Trades Council. These provisions plainly bring the con-
tracts within Section .8 (e),14 which makes it an -unfair labor practice for any labor
organization or employer "... to enter into any contract or agreement, express or
implied, whereby such employer ceases or refrains or agrees . . . to cease doing
business with any other person . . ." with a proviso, however, exempting from
application of Section 8(e) such agreements in the construction industry relating
to contracting or subcontracting of work to be done at the construction site. Thus,
the issues herein are brought squarely within the Colson and Stevens line of cases,15
in which the Board has repeatedly held that although the Section 8(e) proviso allows
the described "hot cargo" type agreements in the construction industry on a vol-
untary basis, when coercion is used to obtain such agreements, Section 8(b) (4) (A)
is violated, and the same conduct also violates the secondary boycott provisions in
Section 8(b) (4) (B). Particularly as I am !bound by the Board's decision in Colson
and Stevens, I find,16 for the reasons fully explicated therein, that Respondents,
excluding Bricklayers Local 2, violated Section 8(b) (4) (i), (ii)(A) and (B) of
the Act, as alleged.
IV. - THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in con-
nection with the operations of the Companies described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents violated Section 8(b) (4) (i), (ii) (A) and (B)
of the Act, I shall recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondents are labor organizations within the meaning of the Act.
2. The Companies, Centlivre Village Apartments and Kimes & Kocks, are engaged
in commerce within the meaning of Section 2(6) and (7) of the Act and are fur-
ther engaged in an industry affecting commerce within the meaning of 8(b)(4) of
the Act.
3. By picketing at the construction jobsite of Centlivre with an object of forcing
or requiring Centlivre, Kimes & Kocks, and other subcontractors to enter into an
agreement which is prohibited by Section 8(e) of the Act, Respondents, except
Bricklayers Local 2, have engaged in unfair labor practices within the meaning of
Section 8(b) (4) (i) and (ii) (A) of the Act.
14 E.g., Local 585 of the Brotherhood of Painters, Decorators & Paper Hangers of
America, AFL-CIO, et at. (Falstaff Brewing Corporation), 144 NLRB 100; The Essex
County and Vicinity District Council of Carpenters and Millwrights, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO (The Associated Contractors of Essex
County, Inc.), 141 NLRB 858.
15 Construction, Production d Maintenance Laborers Union Local 383, AFL-CIO, et at.
(Colson and Stevens Construction Co., Inc), 137 NLRB 1650. Also, eg, Hodcarriers'
and Construction Laborers' Union Local 300, at at. (Fiesta Pools, Inc., at gal.), 145
NLRB 911; Los Angeles Building and' Construction, Trades Council;{ et 'al..(Treasure
Homes), 145 NLRB 279; Los Angeles Building & Construction Trades Council; at at.
(Stockton Plumbing Co ; at al ), 144 NLRB 49; Building and Construction Trades
Council of San Bernardino and Riverside' Counties ; at at. (Gordon Fields ), 139 NLRB
236; Building and Construction Trades Council of Orange County, AFL-CIO (Sullivan
Electric Company), 140 NLRB 946; Hoisting and Portable Engineers Local Union 101,
affiliated with The International' Union of Operating Engineers, AFL-CIO (Sherwood
Const)uction Company,"Inc ), 140 NLRB 1,175; Local 60, United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL-CIO (Binnings Construction 'Company, Inc.), 138 NLRB 12S2
10 With all due respect to the Court of Appeals for the Ninth Circuit, which denied
enforcement in that case, Construction, Production & Maintenance Laborers Union, Local
383, et at. v. N.L R B., 323 F. 2d 422 (September 1963).
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By picketing at the construction jobsite of Centlivre with an object of forcing
or requiring Centlivre to cease doing business with Kimes & Kocks and with other
persons not signatory to the proposed Section 8(e) agreement, Respondents, except
Bricklayers Local 2, have engaged in unfair labor practices within the meaning of
Section 8(b)(4)(i)• and (ii)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.,
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that Respondents, Northeastern Indiana Building and Construction Trades
Council; Brotherhood of Painters, Decorators and Paperhangers of America, AFL-
CIO, Local 469; International Hod Carriers, Building and Common Laborers Union
of America, Local 213, AFL-CIO; United Brotherhood of Carpenters and, Joiners of
America, Local No. 232, AFL-CIO; United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the United States and Canada,
Local No. 166, AFL-CIO; International Association of Sheet Metal Workers, Local
No. 156, AFL-CIO; International Association of Bridge, Structural and Ornamental
Iron Workers, Local 147, AFL-CIO; and International Brotherhood of Electrical
Workers, Local 305, AFL-CIO, their officers, agents, representatives, successors,
and assigns, shall:
1. Cease and desist from:
(a) Engaging in or inducing or encouraging employees of Centlivre Village Apart-
ments, its subcontractors, or any other employer, to engage in a strike, or refusal in
the course of such individual's employment to use or handle any materials or to per-
form any services, or threatening, coercing, or restraining Centlivre Village Apart-
ments, its subcontractors, or any other employer, by a strike or picketing where in
either case an object thereof is to force or require said employers to enter into any
agreement which is prohibited by Section 8(e) of the Act.
(b) Engaging in, or inducing or encouraging any individual employed by Cent-
livre Village Apartments, its subcontractors, or any other employer, to engage in, a
strike or refusal in the course of such individual's employment to use or handle any
materials or perform any services, or threatening, coercing, or restraining Centlivre
Village Apartments, its subcontractors, or any other employer, by a strike or picket-
ing, where in either case an object thereof is to force or require said employers to
cease doing business with Kimes & Kocks.
2. Take the following affirmative action designed to effectuate the policies of the
Act.
(a) Post at the separate business offices and meeting halls of each"of the aforesaid
Respondents, copies of the attached notice marked "Appendix." 17 Copies of said
notice, to be furnished by the Regional Director for Region 13, shall, after being
duly signed by authorized representatives of the Respondents, be posted by Respond-
ents immediately upon receipt thereof, and be maintained for a period of 60 con-
secutive days thereafter, in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken to insure that the
notices are not altered, defaced, or covered by any other material.
(b) Sign and mail copies of said notice to the Regional Director for Region ,13,
for posting by Centlivre Village Apartments, all its current subcontractors, and Kimes
& Kocks, said companies willing, at all locations where notices to their employees
are customarily posted.
(c) Notify the Regional Director for Region 13, in writing, within 20 days from
the receipt of the Trial Examiner's Decision, what steps Respondents have taken to
comply herewith.18
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act on the part of Respondent Bricklayers Local 2.
17 If 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. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
Is If this Recommended Order is adopted by the Board, this provision shall be modified
to read : "Notify the Regional Director for Region 13, in writing, within 10 days from
the date of this Order , what steps Respondents have taken to comply herewith."
NORTHEASTERN INDIANA BLDG. & CONST. TRADES, ETC. 865
APPENDIX
To ALL OUR 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 Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT engage in, or induce or encourage any individual employed by
Centlivre Village Apartments, its subcontractors, or any other employer, to en-
gage in , a strike or refusal in the course of such individual's employment to use
or handle any materials, or to perform any services or threaten, coerce, or re-
strain Centlivre Village Apartments, its subcontractors, or any other employer,
by a strike or picketing, where in either case an object thereof is to force or re-
quire these employers to enter into any agreement prohibited by Section 8(e)
of the Act.
WE WILL NOT engage in, or induce or encourage any individual employed by
Centlivre Village Apartments, its subcontractors, or any other employer, to en-
gage in, a strike or refusal in the course of such individual's employment to use
or handle any materials , or to perform any services, or threaten, coerce, or re-
strain Centlivre Village Apartments, its subcontractors, or any other employer,
by a strike or picketing, where in either case an object thereof is to force or re-
quire said employers to cease doing business with Kimes & Kocks.
NORTHEASTERN INDIANA BUILDING AND
CONSTRUCTION TRADES COUNCIL,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
BROTHERHOOD OF PAINTERS, DECORATORS AND PAPER-
HANGERS OF AMERICA, AFL-CIO, LOCAL 469,
Labor Organization
Dated------------------- By-------------------------------------------
(Representative) (Title)
INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON
LABORERS UNION OF AMERICA, LOCAL 213, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, LOCAL No. 232, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFTTTING INDUSTRY OF THE UNITED STATES
AND CANADA, LOCAL No. 166, AFL-CIO,
Labor Organization.
Dated--- --------------- By-------------------------------------------
(Representative ) (Title)
INTERNATIONAL ASSOCIATION OF SHEET METAL
WORKERS, LOCAL No. 156, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND
ORNAMENTAL IRON WORKERS , LOCAL 147, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------=-----------------
(Representative ) (Title)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 305, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
760-677-65-vol. 148-56
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Midland
Building, 176 West Adams Street , Chicago, Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.
International Association of Heat and Frost Insulators and As-
bestos Workers, AFL-CIO; Local 22, International Association
of Heat and Frost Insulators and Asbestos Workers, AFL-
CIO; Local 113, International Association of Heat and Frost
Insulators and Asbestos Workers, AFL-CIO [Armstrong Con-
tracting and Supply Corporation ; Johns-Manville Sales Corpo-
ration ; Thorpe Products Company; Techalloy Company, Incor-
porated] and Houston Insulation Contractors Association.
Case No. 23-CC-133. September 4, 1964
DECISION AND ORDER
On February 3, 1964, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that Respondent
Locals 22 and 113 had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. He also found that Respondent
International had not engaged in any unfair labor practices and
recommended that the complaint be dismissed as to it. Thereafter,
Respondent Locals 22 and 113 and the Association, the Charging
Party, filed exceptions to the Trial Examiner's Decision and support-
ing briefs; cross-exceptions and a supporting brief were filed by the
General Counsel; and answering briefs were filed by Respondent In-
ternational and the Association.
The Board 1 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.2 The Board adopts the findings of fact made by the Trial
Examiner to the extent consistent herewith and concludes that the
complaint should be dismissed in its entirety.
We do not agree with the Trial Examiner that Respondent Locals
22 and 113 violated Section 8(b) (4) (i) and (ii) (B) of the Act.
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman McCulloch and Members Leedom and Brown]
2 The request of Respondent Locals 22 and 113 for oral argument before the Board is
hereby denied , as the record , exceptions , and briefs adequately present the issues and
positions of the parties.
148 NLRB No. 86.