Operating Engineers, Local 675

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1188 (N.L.R.B. 1971)

1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers , Local 675,
AFL-CIO and Industrial Contracting Co. Cases
12-CP-129 and 12-CC-677
August 27, 1971
DECISION AND ORDER
On November 30, 1970, Trial Examiner James R.
Webster issued his Decision in the above-entitled
proceeding, finding that 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. He further
recommended that other allegations in the complaint
be dismissed. Thereafter, the Respondent and the
General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs. The
Charging Party filed cross-exceptions and a support-
ing brief, and an answering brief to the Respondent's
exceptions and supporting brief, and the Respondent
filed a reply brief.'
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 only to the extent consistent
herewith.2
The Trial Examiner found, and we agree, that the
picketing engaged in by the Respondent was viola-
tive of Section 8(b)(7)(C) of the Act and that the
statements of Business Agent Nell to employees Ed
Deeson and Irving Nichols induced and encouraged
each employee not to work for their Employer,
Industrial Contracting Company, for an object of
forcing or requiring Industrial to cease doing
business with Peacock Construction Company in
violation of Section 8(b)(4)(i)(B) of the Act .3 We also
find that by successfully inducing Deeson and
i We find without merit the General Counsel 's motion to strike
exceptions filed by the Respondent to the Trial Examiner 's Decision and
the Respondent's motion to strike the cross-exceptions of the Charging
Party, as the exceptions in question were timely filed and the issues
raised germane. Accordingly, the motions are hereby denied.
2 The Building and Construction Trades Department , AFL-CIO, was
granted permission to file a hunted amicus curiae on behalf of the
Respondent, and its brief was duly considered by the Board.
3 In agreeing with the Trial Examiner that Tommy Wells was acting as
an agent for the Respondent when he made statements to employees Hart
and Knight inducing and encouraging these employees not to work for
Industrial and thereby violated Section 8(b)(4)(i)(B) of the Act , we rely not
only upon the findings set forth by the Trial Examiner in his Decision, but
also upon admissions by the Respondent that it had knowledge of Wells'
holding himself out to be its agent and the failure of the Respondent to
disavow such holding out to either Industrial or the employees involved. In
view of our finding herein, we find it unnecessary , and make no findings, as
Nichols to refrain. from working for Industrial,
Respondent- coerced and -restrained . Industrial, in
violation, of Section 8(b)(4)(ii)(B): ,However, for the
reasons set forth below, we do not agree with the
Trial Examiner that such statements tainted the
picketing and that the picketing therefore had a
proscribed secondary object.
In our opinion the statements by Business Agent
Nell to Nichols on February 12, 1970, and to
Deeson, approximately a month later, were isolated.5
The remarks to the two prospective employees that
they would in effect be working behind a picket line
was in reference to an inquiry by them after they had
voluntarily sought out Nell and were made in the
union hall, a location removed from the picket lines.
The record is clear that the General Counsel offered
evidence as to Deeson and Nichols in an attempt to
show that Respondent refused to refer employees to
Industrial during the picketing and not for the
purpose of showing the Union's object for the
picketing. Significantly, the Trial Examiner found,
and we agree, that the Respondent did not illegally
refuse to refer employees. More important, however,
the Trial Examiner further found, and we also agree,
that Respondent's picketing conformed in all re-
spects to the requirements laid down by Moore Dry
Dock, 6 and was, therefore, presumptively valid.
Contrary to the Trial Examiner we find that the
above two single isolated statements were insufficient
to overcome the presumption of valid picketing.7
Accordingly, we shall dismiss the 8(b)(4)(ii)(B)
allegation based upon Respondent's picketing.
Relying upon the oral inducements by Nell and
Wells and the fact that the Respondent continued
picketing after it was notified that no employees of
Peacock would be working and during periods when
Peacock's employees were not working, our dissent-
ing colleagues would find that the Respondent's
picketing had an unlawful objective and that the
intent and purpose was to enmesh the employees of
secondary employers. For the reasons discussed
above, we have found that the oral inducements in
question did not reach the magnitude of indicating
to whether Wells' remarks to Foreman Miller were also violative of the Act.
4 Teamsters, Local 542 (Air Support Facilities, Inc. d/b/a Shaker Express
Delivery Service), 191 NLRB No. 79.
5 While we agree with the Trial Examiner that the threats by agent Wells
to two employees who were working and who continued to work for
Industrial constituted inducement and encouragement not to work for
Industrial and violated Section 8(bx4Xi)(B) of the Act, we are unable to
infer from such conduct that the object of Respondent 's picketing was
unlawful . Moreover , it appears that Wells was at most a minor union
functionary . We^ further note that'the Trial Examiner in finding that the
picketing was intended to include and cover Industrial 's work on the project
did not rely on Wells' conduct . No exceptions were taken to the Trial
Examiner's lack of finding in this regard.
6 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547, 549.
° See Buck's Butane-Propane Service, Inc., 186 NLRB No. 35.
192 NLRB No. 175
OPERATING ENGINEERS, LOCAL 675 1189
that the object of the picketing was unlawful. We
have also indicated that -we agree with the findings of
the=Trial Examiner that the Respondent's picketing
conformed in all respects with the criteria established
in Moore Dry Dock.
As correctly and fully set forth, in the dissent, the
Moore Dry Dock standards are evidentiary rules only
and were not meant to be applied mechanically. We
agree that the Board is required to' and should view
the picketing against the background of the totality
of conduct. In our opinion, our dissenting colleagues,
in finding that the Respondent's picketing did not
meet the Moore Dry Dock criteria, have overstated
the significance of , the presence or absence- of
employees of the primary employer as a determina-
tive `factor as, to -whether, or not • "the primary
employer is engaged in normal business'at the situs."
It appears- that they,, have equated absence of
employees with the cessation of normal business.
The District of Columbia Court of Appeals in Salt
Dome Production Co.8 emphasized that the presence
or absence of employees of the primary employer is
not a critical factor in determining the legality of a
picket line. The 'court stressed that a primary
employer should not have the power to prevent
picketing by merely turning out its employees, and
concluded that an employer could be engaged in
normal, operations, regardless of the fact ,that
nonsupervisory - employees were not present on the
situs. In.-New Power9 the ,Board emphasized that,
"the absence of -the primary employer's employees is
merely one of the factors to be evaluated, in
determining . . . whether the primary employer is
then engaged in his normal business at the site." In
finding that the picketing was therein permissible,, we
noted, inter alia, that` the primary employer had a
contractual obligation to perform uncompleted work
at the site -and showed by its actions that it fully
intended to ',complete- such work, and but for the
picket line its employees would ' be working. In
Brownfield "Electric, Inc.;10 the `Board followed this
approach. ' During the course of 'the 'Picketing the
primary employees were absent from the site for 4
days, but the Union AiLevertheless continued picket-
ing: ' In `dismissing! the 'complaint the -Board stressed
that it is not merely the absence of employees of the
primary which is crucial, but the- reasons and
a Seafarers International Umon,of North America, etc v. N.L.RB., 265
F.2d 585, 590.
9 New Power Wire and Electric Corp. and P& L Services, Inc, 144 NLRB
1089, 1093. -
10 145 NLRB 1163, 1165-66,. -
11 In accord, see also Plumbers Local Union No. 307 (Meyers Plumbing),
146' NLRB 888, 'which held that picketing during normal working hours
when the union had no knowledge, that employees would not be working
was insufficient basis to find violation ; Plumbers Local 307 (Zimmerman
Plumbing), 149 NLRB L361, which held that-picketing during the absence of
the primary 's employees at a common situs was not violative where the
circumstances why the employees are absent. The
Board noted that since the. absence was intermittent
and temporary, the work remained for the primary to
complete, and, the primary's material and tools were
stored at the situs, - this was. a , temporary
interruption.11
In finding- that Peacock was engaged in its normal
business despite the absence of employees from -the
situs at all material times, the Trial Examiner- relied
upon- Markwell &- Hartz, Inc.,12 which essentially
applied the above doctrine.Here, as in Markwell, the
Trial Examiner °pointed - out, Peacock had 'begun
work and admittedly had necessary work which was
scheduled'to be performed,-even though its employ-
ees had been' temporarily removed from the site. This
was particularly evident here since Peacock 'main-
tained an office with project records on the site, and
as general contractor was charged with` the responsi-
bilities of overseeing, coordinating, and checking the
work of all the contractors, even during the picket-
ing. Thus, Peacock took out the ` original building
permit, the project's liability insurance, and perform-
ance bond. It also took out workmen's compensation
insurance which covered the ' employees of the
subcontractors who worked on the project, and also
constructed a fence around the project. The Trial
Examiner also places significance on the fact that
Peacock had 12 to 14 months 'of work scheduled- to
be performed on -the site, and that the pulling off of
employees for a relatively short'periodwas in effect
merely a temporary interruption,
Our dissenting-colleagues treat Peacock's notifica-
tion that it would-not have employees working at the
project, nor make any' deliveries at' certain times as
requiring the Respondent to accept such notification
at face value. However, the facts` would suggest that
the primary was playing a "cat and mouse" game by
absenting its employees in such a way that the Union
really had no certainty when Peacock's employees
would or would not be working, Thus, on February
9, Industrial,"the secondary, sent the 'Respondent a
telegram that Peacock's employees were not sched-
uled to work until Industrial had completed its work.
Nevertheless, on February 1,1,' Peacock decided to
put its `employees 'back on the project. Similarly,
although Peacock had informed the Respondent' that
no employees would be working or deliveries made
primary had started work, had substantial work to be performed; and was
available to step in at any time to complete work, and but for the picketing
would have had employees on the site , Auburndale Freezer Corporation, 177
NLRB No. '108, enforcement denied 434 F.2d 1219 (C.A. 5), which found
common sous picketing permissible even though no employees were
working since the primary at all times had control of the sites of dispute;
and The Kroger Company, 183' NLRB No. 113, which held , even though no
employees were present, there was no violation , sine the primary
maintained an office on the situs and at all times work remained-to be
performed.
12 155 NLRB 319, fn. 22, enfd. in relevant part 387 F .2d 79 (CA. 5).
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on Saturdays and Sundays, it made arrangement for
the Florida Power, Light and Power Company to
perform electrical services on its equipment on
Saturday, March 7, after the power company refused
to make connection of electrical services because of
picketing the previous day. In our view the connec-
tion of electrical service was clearly a delivery and
involved work to be performed at the situs. Conse-
quently, such attempted delivery and work were
contrary to Peacock's stated- position of refraining
from making deliveries or working at the site.
. Viewing the totality of both the Respondent's and
the primary's conduct, we, find that the record,
contrary to our dissenting colleagues, supports the
Trial Examiner's conclusions that the Respondent's
picketing, at all times satisfied the Moore Dry Dock
criteria. We disagree with the conclusion that the
isolated statements, of Business Agent Nell were
sufficient to overcome this presumption of legal
picketing. Accordingly, we overrule the Trial Exam-
iner's finding of a violation of Section 8(b)(4)(i) and
(ii)(B) by the Union's_picketing.13
CONCLUSIONS OF LAW
1. Peacock Construction Company and Industrial
Contracting Company, are employers engaged in
commerce and in an industry affecting commerce
within' the, meaning, of. Section, 2(6) and (7) and
Section 8(b)(4) of the Act.
2. International Union of Operating Engineers,
Local 675, AFL-CIO;' is a labor organization within
the meaning of Section 2(5) of the Act.. '
3. By picketing the Housing for the Elderly
project in Ft. Myers, Florida, from February 6 to
March 12, 1970, for an object of forcing or requiring
Peacock Construction Company to recognize and
bargain with Respondent as the bargaining repre-
sentative of certain of its employees and for an object
of ' forcing and requiring certain employees of
Peacock `Construction Company to accept or select
Respondent as their bargaining -representative, Re-
spondent not being currently certified as the repre-
sentative of these employees and a petition under
Section 9(c) of the Act not being 'filed within a
reasonable period of time from the commencement
of such 'picketing, `Respondent has engaged in an
unfair labor practice in violation of Section
8(b)(7)(C) of the Act.
4 By statements of inducement and encourage-
ment not to work made by Tommy Wells on March
9, 1970, as agent for Respondent, to employees and
by statements made by Business Agent Nell to
employees ,of Industrial that they would be working
is We find Highway Truck Drivers and Helpers, Local 107 (Riss &
Company) infra, and related cases cited by our dissenting colleagues in
behind Respondent's picket line if they worked for
Industrial at the, Housing for the. Elderly project,
Respondent induced and encouraged these • employ-
ees not to work for their Employer for an object of
forcing or requiring Industrial to cease doing
business with Peacock Construction Company in
violation of Section 8(b)(4)(i)(B) of the Act.
5. By Business Agent Nell successfully inducing
employees Deeson and - Nichols to refrain from
working for Industrial, Respondent coerced and
restrained Industrial in violation of Section
8(b)(4)(ii)(B)-
6. The aforesaid unfair labor practices are, unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7)1 of the Act.
7. Respondent has not refused to refer employees
to Industrial Contracting Company and has not,
engaged in an unfair labor practice by the fact that
its picketing at the Housing for the Elderly-.project
was conducted at times when employees of Peacock
Construction Company, were not at said premises.
8. Respondent has, not engaged in an-unfair labor
practice in violation of Section 8(b)(4)(ii)(B) of the
Act, by picketing at the Housing for the Elderly
project from February 6 to March 12, 1970.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices violative of Section 8(b)(7)(C)
and 8(b)(4Xi) and (ii)(B) of the Act, we shall order
that it cease -and desist therefrom and `that it take
certain affirmative action as set forth below,
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the, recommend=
ed Order of the Trial Examiner, as modified below
and hereby orders that Respondent, international
Union of Operating Engineers, Local 675,
AFL-CIO, its officers , agents; successors, and
assigns, shall take the action set forth- in the Trial
Examiner's recommended, Order, as herein modified.
1. Substitute the following paragraph for para-
graph 1(a), ,
"(a) Picketing Peacock Construction Company for
an object of forcing or requiring said Employer to
recognize or bargain with the Union as the represent-
ative of its employees or to force or require the
employees of said Employer to accept or select the
Union as their collective-bargaining representative,
said Union not "being currently certified as the
representative of such employees, and a petition
support of their position distinguishable on their facts from the instant case.
OPERATING ENGINEERS, LOCAL 675 1191
under Section 9(c) of the Act not having been filed
within a reasonable period of time from the com-
mencement of such picketing."
2. Delete the last paragraph in the recommend-
ed Order and substitute the following:
"Those portions of the complaint are dismissed
which allege unfair labor practices: (1) By refusing to
refer employees to Industrial and by picketing the
Housing for the Elderly project from February 6 to
March 12; 1970; or (2) picketing at times when
employees of Peacock Construction Company were
not at said premises."
3. Substitute the attached notice for the Trial
Examiner's notice: [Ommitted from publication]
MEMBER FANNING, concurring in part and dissenting
in part:
I agree with the majority that Respondent Union
violated Section 8(b)(7)(C) by picketing the Peacock
construction project.. However, for the reasons stated
in the,dissenting opinion in Markwell and Hartz, 155
NLRB 319, 330, ^ I would dismiss the 8(b)(4)(B)
allegations of the complaint on the ground that the
subcontractors of Peacock were not engaged in work,
unrelated to the normal operations of the primary
employer, Peacock, and, accordiil;gly, the induce-
ment of their employees was not unlawful secondary
conduct within the meaning of, this section of the
Act.
CHAIRMAN MILLER AND MEMBER KENNEDY, dissent-
ing in part:
While we agree -with -our colleagues that by
picketing the Housing for the Elderly project in Ft.
Myers, Florida, Respondent engaged in unfair labor
practices in violation of Section 8(b)(7)(C) of the Act
and that by the statements of its agents Nell and
Wells to employees of Industrial Contracting Com-
pany, Respondent induced and encouraged such
employees not to work for their, employer for an
object of forcing or requiring Industrial to cease
doing business with Peacock Construction Company
in violation of Section 8(b)(4)(i)(B) of the Act, we
dissent from their reversal of the Trial Examiner's
findings that the picketing was violative of Section
8(b)(4XB) of the Act.
It is well settled that the provisions of Section
8(b)(4)(B) reflect "the dual congressional objectives
of preserving the right of labor organizations to bring
pressure to bear on offending, employers in primary
labor disputes and of shielding unoffending employ-
ers and others from pressures in. controversies not
their own." N.L.R.B. v. Denver Building and -Con
struction Trades Council-[Gould &, Preisner], 341 U.S.
675, 692 (1951).14 Thus, a union is permitted to
picket a primary employer with whom -it has a labor
dispute but runs afoul of Section 8(b)(4)(B) if it,
pickets or threatens to picket a neutral employer with
an object15 of enmeshing such neutral employer in.a
controversy not its own.
As the Board has recognized, ascertaining a union's
motivation becomes difficult in cases involving
"ambulatory" or "common" situs situations, i.e.,
where the primary and -secondary employers are
engaged in - operations at the same.location.16 In
assessing union picketing activities at such locations,
the Board has often been confronted by the problem
that unrestricted union-activity which-is designed to
turn away all who approach the situs would be,
inconsistent with the neutral employer's intended
immunity. Conversely, depriving a union of all
opportunity to picket the primary employer' at the
ambulatory or common situs might render its ability
to bring any pressure on the primary illusory when
the primary- employer's only place of business in the
geographic area is the common or ambulatory situs.
In order to accommodate these conflicting interests,
the Board evolved the criteria set-forth in the Moore
Dry Dock case 17 designed to help resolve the
question of whether, a union has the proscribed
motive of enmeshing a -neutral employer when it
pickets locations where both the primary and
secondary employer are present-18 However,, Moore
14 The continued vitality of the Denver Building Trades case has been
acknowledged in Mark,vell and Hartz, Inc. v. N.LRB., 387 F.2d 79, 83-84
(C.A. 5, 1967),. cert. denied .391 U.S. 914; N.LR.B. v. Local 825,
International Union of Operating Engineers, AFL-CIO [Burns ifc Roe; Inc.),
400 U .S. 297;'N.LRB. v. General Drivers &'Dairy Employees [Fox Valley
Suppliers Assn:[, 440 F,2d 354 (C.A. 5,1971).
15 It is unnecessary to find that the sole object of picketing was unlawful;
an unlawful object is enough . NL.R.B. v. Denver Builidng & Construction
Trades Council 341 US. 675, 688-689 ; N.LRB. v. Milk Drivers and Dauy
Employees Local Union No. 584, IBTCWHA, [Old Dutch Farms, Inc.], 341
F.2d 29, 32 (C.A. 2, 1965), cert, denied 382 U.S. 816; NLRB. v. Milk
Wagon Drivers ' Union Local 753, Teamsters [Pure Mile Assn.], 335 F.2d 326,
329 (CA. 7, 1964); New York Mailers' Union No. 6, ITU [N. Y. Herald
Tribune 1 v. N.LR.B., 316 F.2d 371, 372 (C.A.D.C., 1963).
19 The line between legitimate primary and unlawful secondary activity
is relatively easy to , draw where primary and secondary employers have
separate work sites; union activity occurring at the primary employer's own
premises, and seeking no more than the disruption of his own normal
operations , is considered primary, whereas activity extending beyond the
premises' of the primary employer to those of another employer , which-is,
designed to disrupt the operations of the latter, employer, is generally ,
considered secondary . Compare International Rice Milling Co., Inc. v.
N.LRB., 341 U.S. 665, 672 (1951), with N.L.RB. v. United Brotherhood of
Carpenters & Joiners of America District Council ,of Kansas City Mo.
[Wadsworth Bldg. Co.], 184 F.2d 60 (CA. 10, 1950), cert. denied 341„U.S.
947. And see, generally, Retail Fruit & Vegetable Clerks Union, Local 1017
[Crystal Palace Marked v. N.LRB., 249 F.2d 591 , 597-600(C.A. 9, 1957).
17 Sailors' Union of the Pacific (Moore Dry Dock CompanyJ, 92 NLRB
547,549 (1950).
is Under these criteria picketing will be considered primary if : "(a) The
picketing is strictly limited to times when the situs of dispute is located on
the secondary employer's premises; (b) at the time of the picketing, the
primary employer is engaged in its normal business at the sites;, (c) the
picketing is limited to places reasonably close to the location of the situs,•
and (d) the picketing discloses clearly that the dispute is with the primary
employer." Although Moore Dry Dock involved picketing at the common
(Continued)
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dry Dock, standards are evidentiary rules -only, and
compliance with them is merely presumptive of valid
primary picketing. IBEW, Local 480 [Gulf Coast
Bldg. & Supply Co.] v. N.L.R.B., 413 F.2d 1085, 1089
(C.A.D.C., 1969).19 In ascertaining 'the union's
object, the Board, is entitled to look atthe totality of
the union's conduct in order to disclose the union's
true purpose.- IBEW, Local 480 v. N.L.R.B.;, supra,,
413 F.2d' at 1089; Local Union No. 519, United
Association of Journeymen and Apprentices of the
Plumbing &'Pipefitting Industry '[H. L. Robertson &
Associates] vt N.L.R.B., 416 F.2d 1120, 1125
(C.A.D.C., ^ 1969); N.L.R.B. v. Northern California
District Council of Hod Carriers, supra, 389 F.2d' at
725.
The Board and the courts uniformly have held that
picketing ',at a common - situs' violates Section
8(b)(4)(i) and (iiXB) of the Act' if any of the
requirements of Moore ,Dry. Dock are disregarded, or if
the picketing is in any respect conducted in a manner
which "demonstrates that the intent and purpose -of
the picketing is-.to 'appeal to the employees of
secondary employers. N.L.R.B. V. Northern California
District Council of Hod Carriers, 'supra; Retail Fruit
Clerks' v. N.L.R.B., supra; N.L.R.B. v. Truck Drivers
& He pers Local Union No. 728, Teamsters- [National
Trucking' Co:], 228 F.2d 791 (C.A. 5); N.L. R. B. v.
Service Trade Chauffeurs, Salesmen & Helpers Local
145 [Howland Dry -Goods], 191a F.2d 65 C.A. 2);
N.L.R.B. v. Local Union No. 55,,and Carpenters'
District Council of Denver and 'Vicinity 218' F.2d 226
(C.A. 10); N.L.R.B. v. Denver Building and,Construc-
tion Trades, Council [Climax Molybdenum Co.], 219
F.2d 870 _ (C.A. 10); John A. ' Piezonki d/b/a Stover
Steel Service v. N.LR.B., 219 F.2d 879 (C.A. 4);
International Brotherhood of ,Boilermakers, Lodge 92
(Richfield Oil Corporation); ' 95 a'NLRB 1191; ' Retail
Fruit & Vegetable Clerks' Union Local 1017 (Crystal
Palace Market), 116 NLRB 856.- Mere compliance
with the four, requirements of 'the Moore Dry=Dock
case does not,immunize the union's picketing, for the
union may, by other conduct, reveal that its objective
is-"secondary. Thus, if the picketing is,,directed at the
primary employer, 'it 'has been regarded as primary
and lawful, but if a purposeful'' effort is made to
direct it at' the neutrals that work at a common site
the activity has been viewed as secondary and
situs of a secondary employer, its rule has been extended by the Board to
picketing at the , situ' of a primary employer' where ,a secondary or neutral
employer • is engaged.' American Newspaper Guile AFL=CIO (Youngstown
Arc Engraving Co.), 153 NLRB 744; Retail Fruit & Vegetable, Clerks Union,
Local 1017 (Crystal Palace Market), 116 NLRB 856, enfd; 249 F.2d 591
(C.A. 9); Local ''Union No.• 55, an d Carpenters' DistrictCouncil of Denver and
Vicinity (Professional & Business-Mews Life Insurance C,,l, 148 NLRB 363,
enfd . 218 F .2d 226 (C.A. 10).' '
is Accord : NLRB. v. Northern California District Council of Had
Carriers, 389 F.2d 721 , 725 (C.A. 9, 1968); Local 761, 111E (G. 'E. Cal v.
N.LR.B., 366 U.S.' 667 , 677 (1961); N.L:'R.B . v. Carpenters District Council
unlawful. Direct appeals to secondary, employees or
other regular common' situs tenants `have in effect
negated the conditions required in 'Moore Dry Dock
to justify picketing; and have exceeded the'limits •of
permissible primary activity and constituted viola-
tions of the secondary boycott provisions of the Act.
Crystal Palace- Market, 1l6_ NLRB $56;, Union.°.de
Trabajadores de la Gonzalez Chemical Industries, Inc.,
128 NLRB 1352; Highway'Truckdr-ivers and Helpers,
Local 107, Teamsters (Riss & Company), 130 NLRB
943, enfd. 300 F.2d 3-17 (C.A. 3, 1952).
Applying the foregoing principles, the totality of
Respondent's conduct demonstrates that its picket-
ing had a proscribed object. Thus, Respondent,, in
addition to unlawfully orally inducing employees of
Industrial to engage'in a work stoppage, picketed ,the
project after March 4 after being notified that there
would be no Peacock employees'on-the job after -12
noon on Monday',- through Friday;' nor on Saturday
orSunday. Subsequently,. Respondent 'continued to
picket the 'project 'after being advised that ' no
employees of Peacock were on the premises' and that
only employees of neutral, employers would be
working there. Such a pattern of ' conduct provides
ample basis for it 'conclusion that Respondent
intended to induce 'employees of the neutral subcon-
tractors --to 'cease work, arid', thereby' force their
employers to stop doing business with Peacock, the
primary employer. Local Union 519, United Associa"-
tiom of Journeymen and Apprentices ,of the 'P< lumbing
and Pipe Fitting Industry (H. L. Robertson, &
Associates, inc.), 171 NLRB No. 37, enfd. 416 -F.2d
1120 _(C.A.D.C.); Local 134, International Brother-
hood of Electrical Workers (Illinois, Bell,, elephone
Co.), ^ 179 NLRB No. 33, (TXD) (1969),'_en(d.
sub nom. Local, -134, LB.E.W.-,,v. N.L.R.B., 433 F.2d
302 - (C.A. -7; 'l970);, N-L.R.B..v. Carpenters District
Council of Kansas City (Kaaz Woodwork Co.), „383
F.2d 89, 92, 95 (C.A. 8); Local Union No. 519,
Journeymen,,v. N.L.R.B., supra, 416 F.2d at 1122,
1125-26; Brown - Transport ,Corporation v: N.L.R.B.,
334 F.2d 30, 39 (C.A. 5, 1964).20
The fact that Peacock may, have had property -on
the construction site does not in our view legalize the
picketing conducted in, the circumstances here
present. In Local 134,, IBEW v; NL:R.`B.,'supra, 433
F.2d at 303, enfg. 179 NLRB No, 33 (1969), the
of Kansas City (Kaaz Woodwork Co.), 383 F.2d 89,"92,94 (C.A. 8,1967).
20 As ^ the Fifth Circuit observed 'in Brown' supra, ' 334 ` '1 2d' at 39:
There is simpl i'np excuse for picketing where the`` message is seen by
neutral employees of neutral employers but` is not, seen of all by the-
employees of the primary employer.
• s s , s s
Picketing that has the, effect of interfering with the work of neutral third
parties, 'and, which can not have the effect of, appealing to the employees
of the primary, employer can have no other purpose- than that which
was actually achieved' ...
OPERATING ENGINEERS, LOCAL 675
picketing took place at a common situs construction
site when- the primary employer's property was
present but its employees were not. In a per curiam
opinion, the court approved the Board's finding that
such "common situs `picketing when no primary
employees are on.the scene does not become primary
action merely because property of the primary
employer is present." 179 NLRB No. 33, TXD.
The Trial, Examiner found, and our colleagues,
contrary to our view, agree, that Respondent's
picketing -Satisfied the Moore Dry Dock requirements
because Peacock was at all times engaged in normal
business operations at, the jobsite. We submit that in
the circumstances here Peacock was engaged in its
normal business at the site only when its employees
were there present.
As previously noted, Section 8(b)(4) was designed
to shield unoffending employers and others from
controversies not their own. The Moore Dry Dock
rule was evolved to aid realization of this objective
while at the same time allowing a union its right to
picket the primary employer at a situs where neutral
employers were present. Accordingly, Moore Dry
Dock requires that picketing take place at the
common situs only when the primary is carrying on
his operations there.21 It thereby insures that
picketing appeals will be directed toward primary
employees and others involved with the primary
enterprise in some manner, and not directed against
neutral employees, though they might be legitimately
affected by lawful primary picketing. Moreover, the
Board expressly made plain in Moore Dry-Dock that
the formula -did not contemplate that the- mere
presence of primary employer's property in neutral
territory was equivalent to its being engaged in
normal • operations at the site. Rather, it was
21 Under Moore Dry Dock, supra, 92 NLRB at 549, to qualify picketing
of a site as primary, the primary employer, among other things, normally
must actually be engaged in his usual business through employees actually
present there at the time, save fora possible temporary interruption of work,
as where employees leave forlunch. See Columbus Building and Construction
Trades Council, AFL-CIO (Merchandise Properties, Inc.), 149 NLRB 82, 91
(1964), enfd. per curiam sub nom., N.L.R B. v. International Brotherhood of
Electrical Workers, Local No. 683, 359 F.2d 385 (C.A. 6, 1966); International
Brotherhood of Electrical Workers, Local 861 (Plauche Electric, Inc.), 142
NLRB 1106, 1109 (1963). If employees of the primary employer are neither
present nor scheduled to be present at the site, it may normally be
concluded that the union's picketing is directed against other
employees-those of neutral employers. See Local 519, United Association of
Plumbers v. N.L.R. B, supra; Painters District Council No. 38, Brotherhood of
Painters, Decorators and Paperhangers (Edgewood Contracting Company), 153
NLRB 797; Local Union #„ 469, United Association of Journeymen &
Apprentices of the Plumbing andPipe Fitting Industry (Hansberger Refrigera-
tion and Electric Co.), 135 NLRB 492; Sheet Metal Workers', International
Association Local Union No 3 (Siebler Heating & Air Conditioning, Inc.), 133
NLRB 650; International Brotherhood of Electrical Workers Local 861
(Cleveland Construction Corp.), 134 NLRB 586; Teamsters, Chauffeurs &
Helpers Umon, Local 279 (Wilson Teaming Company), 140 NLRB 164;
Gardeners, etc. Local 399 (Roberts & Associates), 119 NLRB 962; Brother-
hood of Teamsters & Auto Truck Driers, Local No. 70 (C & T Trucking Co ),
191 NLRB No. 2.
n In Moore Dry Dock,-the dissenting Board minority noted that the
1193
necessary that the employer be engaged in its
separate business at the common situs through
employees of its own or of other employers with
whom the union might seek to communicate. Sailors'
Union of the Pacific AFL (Moore-Dry Dock Co.), 22 92
NLRB 547, 551.
It is evident that Respondent's picketing of the
construction project after being notified on March 4
that no employees of Peacock would be working at
the site except between the hours of 7 a.m. to - 12
noon, Monday through -Friday, and - after being
notified ^ on March 8` that no Peacock 'personnel
would be on the -project nor would any deliveries be
made to Peacock at any time after March. 9, until
further notice, clearly did not comport with Moore
Dry Dock requirements and was designed to affect
the neutrals at the site. Although the employees of
Peacock worked on the project only from 7 a.m. until
noon on March 4, 5, and 6, Respondent continued its
picketing both mornings and afternoons, resulting in
the refusal of Industrial's crane operator and oiler to
work. On Friday, March 6, because of'the picketing,
a crew from the Florida Power and Light Company
refused to make connection of electrical services to a
tower crane on the project. The Power and Light
Company's supervisor arranged for the work to be
done on Saturday, March 7, on the assumption that
no picketing. would then be engaged in at the site.
Respondent received-word of this plan, and arranged
for picketing to continue at the Peacock `gate to the
site on Saturday, March 7, resulting in the refusal of
the Power and Light crew to enter, t-the premises. On
March 9, Respondent 's agent, Wells, chastised and
threatened three individuals employed by Industrial
for having crossed- Respondent's picket line. Earlier,
Respondent successfully orally induced individuals
Board, in a prior decision , found incidental interference with a neutral
employer by picketing of -a primary employer's trucks near the neutral
employer's premises to be proper` because "[t]he union in-that case was
careful to identify its picketing in time and place with the actual functioning of
the primary employer's trucking operations . . . ." 92 NLRB at 552.
[Emphasis supplied .] The Board majority stated at 551:
We believe that our dissenting colleagues' expressions of alarm are
based on a misunderstanding of our decision . We are not holding, as
the dissenters seem to think, that a union which has a dispute with a
shipowner over working conditions of seamen aboard a slip may
lawfully picket the premises of an independent shipyard to which the
shipowner has delivered his, vessel for overhaul and-repair . We are only
holding that if a shipyard permits the owner of a vessel to use its dock
for the purpose of readying the ship for its regular voyage by hiring and
training a crew and putting stores aboard ship , a union representing
seamen may then , within the careful limitations laid down by this
decision, lawfully picket in front of the shipyard premises to advertise
its dispute with the shipowner.
It is true, of course, that the Phopho was delivered to the 'Moore
yard for conversion into a bulk gypsum' carrier . But Moore in its
contract agreed that "During the - last two weeks, ... [the Phopho's ]
Owner shall have the right to put a crew on board the vessel for
training purposes ..... Samsoc (the Phopho's Owner) availed itself of
this contract privilege. When it did, Moore and Samsoc, were
simultaneously engaged in their separate businesses in the Moore yard.
[Emphasis supplied.] -
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by Industrial not to work at the project.
This conduct clearly demonstrates that Respondent's
picketing was not wholly without an unlawful
secondary objective.23
Considering the totality of Respondent's conduct,
Respondent's picketing, in our view, was designed to
directly and deliberately enmesh neutral employers
in Respondent's dispute with Peacock and was
conducted in a manner uninhibited by "restraint
consistent with the right of neutral employers to
remain uninvolved in the dispute." Retail Fruit
Clerks Union v. N.L.R.B., supra, 249 F.2d at 599.
Such picketing was not engaged in so as to have as
little impact as possible,on the neutral employers at
the, site, but, instead, was directed at them. The
decision of our colleagues on the majority here
comes dangerously close to a holding that the mere
existence of a contract or subcontract gives a union
the unrestricted right to picket a construction project
in support of its primary dispute with the contractor
or subcontractor at any and all times until such
contract or subcontract has been fulfilled. This we
are unwilling to do. Accordingly, we would affirm
the, Trial Examiner's finding of violation of Section
8(b)(4)(i)(ii)(B) by the picketing.
23 This is not a case where the primary employer continued to engage in
his normal operations'at the picketed site by use of supervisory employees,
as was the situation in Salt Dome Production _Co., cited by our colleagues.
Nor is , this , a situation where the employees of the primary employer were
successfully induced by the picketing to stay ' away from the picketed
premises, as was the case in New Power, andother similar cases , also cited
by ow , colleagues. ,Accordingly, reliance on such cases in our view is
misplaced . We do not view the primary employer's removal of its employees
from the jobsite nor -rearrangement of their working hours on the dates
indicated as a stratagem to -render the picketing unlawful nor a "cat and
mouse" game suggested by our colleagues ; rather, it appears to us that a
good-faith effort was being made to neutralize the operations and
employees of Industrial and other neutrals at the site . Cf. Local Union 519,
Plumbers, 171 NLRB No. 37, enfd. 416 F.2d 1120 (C.A.D.C., 1969).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This case, with all
parties represented, was heard in Ft. Myers, Florida, on
August 5, 6, 7, and 26, 27, and 28, 1970, on complaint of
the General Counsel and answer of International Union of
Operating Engineers, Local 675, AFL-CIO, herein called
Respondent or Union. The complaint was issued on June
9, 1970, on charges filed February 27, March 6, and June 1,
1970. The complaint alleges that Respondent picketed a
building site in Ft. Myers, Florida, (1) for the purpose of
forcing or requiring the employees of the general contrac-
tor, Peacock Construction Company, to accept Respon-
dent as their collective-bargaining agent without a petition
for representation being filed within a reasonable time, and
(2) for the purpose of forcing or requiring Industrial
Contracting Company, a subcontractor, to cease doing
business with the general contractor, and that Respondent
has .thereby engaged in violations of Section 8(b)(7)(C) and
8(b)(4)(i) and (ii)(B) of the National Labor Relations Act,
herein called the Act.
The Charging Party and the Respondent have filed briefs
herein and these have been carefully considered . Motion to
Correct the Record was filed by the Charging Party on
October 28, 1970. On October 30, 1970, Respondent filed
objection to the Charging Party's motion and also` a
Motion to Correct the Record. These have been duly
considered. The Charging Party's motion is granted except
as to the following particulars: At 1. 12, p. 50, the work
"employers" is not changed . The motion's reference to a
change at 1. 23 on p. 146 is apparently intended for line 24,
of that page and the change is granted as to that line. At
line 2, page 438, the phrase "get to perform that schedule"
is changed'to read "get them to perform that on schedule."
Respondent's Motion to Correct the Record at 1: 25, p. 775
is granted. Company's rebuttal to Respondent's Objections
to Company's Motion to Correct the Record, and
Company's objection to the Respondent's Motion to
Correct the Record was untimely. filed on November 4,
1970.
Upon the entire record and my observation of, the
witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS INVOLVED,
Peacock Construction Company, herein called Peacock,
is a Georgia corporation with its principal place of business
in Ft. Myers, Florida, and is a general contractor engaged
in the business of commercial and industrial construction.
During the past year, it has caused goods,; supplies, and
materials valued in excess of $50,000 to be ;shipped to, its
place of, business in Ft., Myers and other- jobsites in the
State of Florida, directly from points outside the State of
Florida.
Industrial Contracting Co., herein called Industrial, is a'
Minnesota corporation with place of business in Fort
Lauderdale, Florida, where it is engaged in the heavy
construction industry . During the past year , it has caused
goods, supplies, and materials valued in excess , of $50,000
to be shipped to its place of business in Fort Lauderdale
and to other jobsites in the State of Florida , directly from
points located outside the State of Florida.
I find that Peacock and Industrial are employers
engaged in commerce and in an industry ' affecting
commerce within the meaning of Section 2(6) and (7) and
Section 8(b)(4) of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local 675,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
m. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Whether Respondent picketed at the Housing for. the
Elderly, project in Ft. Myers, Florida, for an object of
OPERATING ENGINEERS , LOCAL 675 1195
forcing or requiring Peacock Construction Company to
recognize or bargain with it as the representative of certain
of its employees, without Respondent being certified as
their representative and, without a petition for representa-
tion being filed within a reasonable period of time.
2. Whether by its picketing at the Housing for the
Elderly building site and by statements made, to employees,
Respondent induced employees of Industrial to cease work
and also coerced Industrial, - for an object of forcing
Industrial to cease doing business with Peacock Construc-
tion Company. ,
3. Whether Tommy Wells was an agent of Respondent
as to statements he made to a foreman and employees of
Industrial on March 9, 1970.
4. Whether Subcontractor Industrial became an ally of
General Contractor Peacock by taking over certain work
that Peacock's employees were scheduled to perform.
5. Whether Respondent refused to refer employees to
Industrial during the picketing.
B. Sequence of Events 1
In January 1970, Peacock Construction Company began
the construction of an 11-story reinforced, concrete
apartment building` in Ft. Myers, Florida, known as the
Housing for the Elderly, pursuant to contract with the
Housing Authority of Ft. Myers. In February, Peacock
moved a tower crane onto the project for use in this
construction; the crane was moved in a knocked-down
condition. By February 15, the body of the crane had been
placed on railroad tracks, but the tracks had not yet been
leveled. The tower part of the crane. was lying on the
ground.
Peacock does not have a collective-bargaining agreement
with Respondent or any labor organization. In the fall of
1969, Peacock was approached by someone on behalf of
the Union and informed that the Union would like to
furnish him with operators for his equipment on a Cypress
Lake High School project, and would like to enter into a
contract with him on the matter. Peacock replied that he
did not have enough big equipment and did not use it
regularly enough to justify entering into a contract with
Respondent. '
At the beginning of the work on the Housing for the
Elderly project, subcontractor Carter Asphalt Paving
Company was employed by Peacock to clear the site and
put in some preliminary fill. Peacock contracted with
Industrial Contracting Company to drive - the pilings.
Peacock's employees were to mark the locations of the
pilings.
Industrial has had contracts with Respondent since
about 1963: All of its equipment operators have been
referred by or cleared through Respondent. Industrial had
several other projects in Florida at the time of its contract
with Peacock. Respondent has had no labor dispute with
Industrial at any time material herein.
On January -8, 1970, Earl Lassiter, field superintendent
for Industrial, came to the Peacock project, with an
operator, Vernon Shoemake, a member of the Tampa
Local of the Operating Engineers, and with a crew of pile
drivers. Lassiter wanted to get Shoemake cleared to work
in Ft. Myers, which was in the jurisdiction of Respondent.
He asked the Union's steward- in Industrial's yard in Ft.
Lauderdale whom he should contact in Ft. Myers. The
steward told him he thought it was a Bill Bradford. When
Lassiter got to Ft. Myers, he got the pile drivers cleared
through the business agent for the pile drivers union who
told him that he should see Bill Bradford on matters
pertaining to operating engineers . Lassiter was unable to
locate Bradford. At another jobsite, in the area, he asked an
operating engineer about Bradford and was told that he
was not in the area anymore: and that he -should contact
Tommy Wells. Lassiter tried to contact Respondent's
office in Ft. Lauderdale but Business Agents Richard'Nell
and James Eskew were out. The call was placed again on
Friday, January 9, and he was still unable to contact Nell
or Eskew. About 10 or 11 a.m. on-that°day, Tommy Wells
came to the project. Lassiter asked Wells if he. was
representing the Operating Engineers in the Ft. Myers area
and Wells stated that he was. Lassiter stated that he would
like to get Shoemake cleared in and Wells replied, "No, we
have too many men- out of work." Lassiter asked about
letting Shoemake finish the day and for Wells to send him
a man on the following Monday. Wells agreed. Lassiter
also asked him to send an oiler to start work that day,
Friday, January 9. An oiler reported- for work on the
project at noon of that day. Vernon„, Shoemake finished
that day and then went back to Tampa. On Monday
morning, Harold Stallings, an operator, reported for work.
On January 9, Lassiter asked for and received from Wells a
telephone number to call if Lassiter wanted to contact him.
On Wednesday or Thursday of that week, January 14 or
15, Wells came to the project. He complained about the
pay that the oiler was receiving and contended that he
should be paid operator's scale because Industrial had two
welding machines on-the job. Lassiter stated that the policy
had been to pay an oiler the operator 's scale -if there were
three welding machines but not if there were one or-two.
Wells also asked if Stallings was doing all right and
Lassiter said that he was.
Shortly before February 6, Nell called Wells on the
telephone and told him that he was going to have "a picket
line put on the [Housing for the Elderly] job." He told
Wells to prepare the signs and to walk the picket line.
On February 5, Wells came to the project and told
Lassiter that he would like to talk to Harold Stallings,
which he did. He stepped up on the track of the rig and
talked to Stallings for a few minutes but Lassiter, did- not
hear the conversation.
When Lassiter arrived at the job on the morning of
February 6, he observed a picket line at the two gates in
use on the project. The picket signs stated, "Peacock
Construction Company, Gen. Con., lowering my ' living
standards as an operating engineer: Local #675. I.U.O.E."
Wells was at the gate on' the northeast corner of the
project, carrying a picket sign. Lassiter asked Wells what
was the purpose of the picketing. Wells replied that it was
against Peacock Construction Company to get them to sign
a contract with the Union. Lassiter stated that -Industrial
has a contract with Respondent and lacked approximately
2 weeks of being finished on the project. He asked if
Industrial could finish the piling and get its equipment out
of there. Wells replied, "I'm sorry about that. There's
' All dates are in 1970 unless otherwise shown.
1196 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
nothing I can do." } Stallings and Gordan, Industrial's
operator. and oiler, were picketing at the southwest gate.
Lassiter asked Stallings how long-he thought the picketing
would last, and Stallings replied that.-it would be until
Peacock signed a contract.
Respondent has not been certified to represent any of the
employees of Peacock, and no petition for representation
has -been filed with the Board regarding the employees of
Peacock.
Since the Union's dispute was with Peacock, Paul
.Prendergast, president of Industrial, suggested to Peacock
that if his employees did not work on the project, perhaps
Industrial could proceed with its work. Peacock agreed to
pull his men off the job. At that time, Peacock's men were
engaged in preliminary work including, cleaning of forms,
setting up of the power crane, and laying out of the
locations for the pilings.
On Monday, February:9, Industrial sent the following
telegram to the Respondent:
Your picketing at construction site at Edwards Drive
and Fowler Street in Fort Meyers is improper.
Industrial Contracting Company has no dispute with
Operating Engineers. No Peacock employees are
scheduled to work on job site until Industrial Contract-
ing Company completes its work. Industrial Contract-
ing` Company will take all appropriate ,legal action if
necessary.
This telegram was 'received, by Respondent in the late
afternoon of February 9, and after, consultation with
Attorney,Gopman it was decided that Respondent would
wait and see, what occurred on, the following day.
Respondent's offices are in- Ft. Lauderdale, Florida,
approximately 135 to 140 miles from- Ft. Myers, Florida.
On the following, day, Business Agent James Eskew .was
informed by someone in the Ft-.,Myers area that employees
were working- on, the project, therefore Respondent
continued its picketing. Peacock's employees did not work
on February 10.
.. Since the picketing continued, Peacock decided to put
his men back on the. project to continue with the work he
had there for them. ,
On.February 11; Peacock designated the,northeast gate
to the project for the use of the employees of Industrial and
the southwest gate,for the use of his employees,. A telegram
of that =date was dispatched by Peacock to the Union,on
this matter as follows:
Separate gates have been provided at our construction
-project on Edwards Drive in, Fort, Myers. This project
known as ' Housing , for Elderly Florida #47-4. One
gate is at southwest comer of corner, of the site at B,ay
Street and is for employees and suppliers of Peacock
,Construction Company. The other gate, is on Edwards
Drive is, solely for employees and'suppliers^ of Industrial
Contracting Company. Unless you have dispute with
Industrial Contracting Company we demand you
remove your pickets from the gate area in Edwards
Driver Should you fail to heed this demand we hold
you responsible,for any and all damages to us, resulting
,from illegal or improper picketing and or other actions
by your union and or any of its members.
There are three gates on the project. One was blocked
with equipment and, was locked and not m use. Signs were
,put on each 'of, the other two gates stating, that the
southwest gate was for, thee employees and,, the materials
delivered to Peacock Construction Company and the other
for employees, and materials for Industrial Contracting
Company.
Prior to the, designation of the separate gates and the
telegram , of February 11, Respondent had been picketing
at both gates:-Within a short time after -the telegram of
February 11, Respondent ceased picketing, at the -gate
designated for Industrial's employees and materials;,and
picketed only at the gate and area- designated for'"use of
Peacock's personnel.
On about February 22 or 23, Peacock'was called by a
person who identified himself as `,Tommy Wells with the
Operating Engineers" and= was asked if Peacock•wouldbe
willing to talk, I with Dick Nell, ` business agent for , the
Operating Engineers, regarding the problem at the high-
rise apartments. Peacock agreed to'meet with Nell acid-was
told that Nell would call him at 2 p.m. that day. Later in
the afternoon, Nell called, and he and Peacock agreed to
meet on February 27.
At about 11 a.m. on February 27, Peacock receiveda call
from Nell asking'that, Peacock meet him in the lounge of
the Holiday Inn, in Ft. Myer, which Peacock-did. At this
meeting, Nell told - Peacock that he would like to furnish
men for his equipment, particularly on the Housing for the
Elderly project and that he would like for-Peacock to sign
an agreement with the Union. Peacock replied that he did
not have enough regular work of this type to where it was
necessary or proper for him to sign such an agreement and
that as a matter of policy he did not sign labor agreements
and had never signed an, agreement with any' labor
organization- and did not propose to do so at-this time; that
he had people who had worked for him for 15 or 20 years
who were not members. of any union, and if he, did sign a
labor agreement they would_notbe able to work'for,him;
and that he was,not going to do this,
Nell proposed that Peacock would not actually have to
sign, a contract but that the ,Union would have to, have
something in,writing- perhaps a letter; that,the Union had
to have something in writing before it could legally collect
money for health and welfare from, an, employer.
Peacock, stated that he would be willing to use one of the
Union's members on the crane ,and pay him the union
scale but would not be willing to sign an agreement,or_to
put two men on the crane where he needed only one, Nell
then stated that the guessed they could not settle, their
problems. Peacock told him that he could not picket at this
project forever for recognition; that he could get an
injunction. Nell stated that there is more than one way to
kill a cat besides choking it to death. This concluded the
meeting.
On March, 3, Peacock sent a _ telegram to the Union,
received on March 4, as follows:
Notice is,hereby served upon you that effective March
4, 1970 no employees of Peacock Construction Compa-
ny will work at the site of Housing for Elderly job on
Edwards Drive, Ft. Myers, Florida nor will any
material deliveries be made, except between the hours
of 7:00 a.m. to 12: 00 noon,, Monday through Friday.
OPERATING ENGINEERS, LOCAL 675 1197
On March 4, Industrial sent a telegram to Nell as
follows:
We understand that beginning today there will be no
Peacock Construction Company personnel or deliveries
to Peacock Construction Company on their Housing
for the Elderly project at Ft. Myers, Florida, between
the hours of 12:15 p.m. and 12:00 midnight on
weekday or at any time on Saturdays and Sundays. We
intend to have a guard present at the gate to assure that
no Peacock personnel or deliveries are permitted on the
jobsite during the above-stated times. We intend to
complete our pile driving work at the project working
from 12:30 p.m. to 9:00 p.m. on weekdays and 8:00
a.m. to 4:30 p.m. on Saturdays and Sundays. Since we
are short of work in the Ft. Lauderdale area we intend
to send to Ft. Myers one of our regular operators and
oilers so we will not have to lay them off as we would
like to keep these regular men working as long as
possible.
On March 4, 5, and 6, 1970, the employees of Peacock
worked on the project from 7 a.m. until noon, but not in
the afternoons . They were engaged in the cleaning of
forms. The Union continued its picketing both mornings
and afternoons , and Industrial's crane operator and oiler
did not work. Prendergast then suggested to Peacock that
he pull his men off the project entirely and stated that he
would take over the work of laying out the pilings which
Peacock's employees had been doing.
On Friday, March 6, a crew from the Florida Power and
Light Company came to the project for the purpose of
connecting electrical services to the tower crane, but in
view of the picketing this work was not done. The
supervisor of the crew arranged for this work to be
performed on Saturday, March 7, on the assumption that
no one would be working on the project and therefore
there would be no picketing. Respondent received word of
this plan and arranged for picketing to continue at the
Peacock gate on Saturday, March 7. The Power and Light
Company crew came to the project on Saturday but
because of the picket line did not enter the project.
Industrial had been without a crane operator and oiler
on the project since the picketing began on February 6. On
Saturday , March 7, Industrial's field superintendent,.
Lassiter, started operating the Company 's crane, and with
a crew of pile drivers was able to resume Industrial 's work.
Prendergast employed an engineering firm, Duane Hall &
Associates , to mark the locations for the pilings. As
previously mentioned , - Industrial had agreed to take over
and perform this part of the construction work that
Peacock 's employees had been performing . This was for
the purpose of allowing Industrial to continue with his
subcontract without employees of Peacock being present.
On Sunday evening , March 8 , Industrial sent the
following telegram to Respondent:
Referring to Peacock Construction Company Housing
for the Elderly project at Ft. Myers, Florida, this is to
advise you that no Peacock Construction Company
personnel will be on the project nor will any deliveries
be made to Peacock Construction Company at any
time on Monday , March 9 , 1970. Nor at any time
thereafter until further notice.
On Monday morning, March 9, at about 8 or 8:30,
Industrial's foreman, Ray Miller , and employees Raymond
Hart and Cornell Knight, who were employed on the
project by Industrial as pile drivers, were in a cafe parking
lot near Industrial's gate to the project. Tommy Wells
stated to them that they were "no good son-of-a-bitches"
for crossing the picket line, and that "if he thought it would
do any good he would just drag [them ] out of their pickup
and kick the-out of [them ]." Wells pointed his finger at
each one of the three and stated that that "goes for you
and you and you."
Following Friday, March 6, none of Peacock's employ-
ees worked on the project for the duration of the picketing.
Picketing continued until March 12, 1970. After receiving
each of Industrial 's telegrams of March 4 and 8, Nell
conferred with Attorney Gopman and was advised that the
pickets could remain , and the pickets were so notified.
During this period , a plumbing supply concern came to
the project with some plumbing fixtures but after talking
with the guard and Prendergast the driver did not enter the
project. Also, a subcontractor came to the project for the
purpose of placing some reinforced steel on the project, but
he was directed by the guard to Peacock 's main offices.
During this period, Peacock had other building projects
in Ft. Myers-Cypress Lake High School ; Myers Manor, a
nursing home ; and a building for the Broadway Profes-
sional Building. None of these projects were picketed by
Respondent , although on the high school job Peacock had
items of equipment that came within the jurisdiction of
Respondent.
C. Industrial's Effort to Get Employees for the Ft.
Myers Project
Industrial has had a contract with Respondent since
1962 or 1963 and since that date all of its operators and
oilers have been obtained or cleared through Respondent.
Whenever Industrial has requested Respondent to refer an
employee , one has been referred ; that is, prior to the
commencement of picketing at the Peacock project. As
previously mentioned, when Industrial's field superintend-
ent, Earl Lassiter, came to the project in January 1970, he
obtained an operator, Harold Stallings, and also an oiler
from Respondent through contact on the matter with
Tommy Wells at Ft . Myers . On February 6, 1970, when
picketing began , Stallings and the oiler then employed did
not report for work , but along with Tommy Wells were on
the picket line.
That afternoon, a Friday, at about 5 p.m., Industrial sent
a telegram to, Respondent requesting an operator and an
oiler, as follows:
This is confirming our request for an operator and oiler
for our 4250 American Crawler at Edwards Drive and
Fowler Street in Fort Myers. The job name is Housing
for the Elderly Project FLA47-4. Harold Stallings and
Bert Devore are perfectly acceptable or any operator
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and oiler competent to operate this piece of equipment
to drive piling.2
The picketing continued, and no operator or oiler
reported for work. At that time, Industrial had three
operators employed in the jurisdiction of Respondent, Ed
Deeson, Irving Nichols, and Joe Justus. Paul Prendergast,
president of Industrial, called Nichols in to the office
regarding a reassignment from the project he was on, the
intercoastal canal at Dania, Florida, to the Peacock project
in Ft. Myers. He told Nichols that there were two gates on
the project, one for Peacock employees and one for
Industrial and that there was no picket line on the
Industrial gate. Nichols had heard that "there had been
some trouble over here" and he told Prendergast that he
could not go without checking with the Union first and
getting a clarification. He testified that ordinarily the
Company could transfer him from one rig to another
without his checking with the Union, but in view of the
reported "trouble" at the Peacock project, he wanted to
check it out with Respondent.
At approximately 9 a.m. on February 12, 1970, Nichols
went to the union hall and spoke with Business Agents
Richard Nell and James Eskew. He told them that
Industrial wanted him to work at the Housing for the
Elderly project and that Prendergast had told him about
there being two gates and that there was no picketing at the
Industrial gate. Both Nell and Eskew told him that the
picket line there was their picket line and that if Nichols
went to work there he definitely would be working behind
their picket line, and that the Industrial people were telling
him a bunch of lies to get him to go run the rig at that
project. Nichols stated that he definitely would not work
behind a picket line, and that ended the conversation.
Nichols had unloaded Industrial's crane on the Housing
for the Elderly project in January 1970 before there was
any picketing. Also, he worked at this project after the
picket line was taken down.
In the early part of March 1970, Prendergast called
employee Edward Deeson in and asked him about going to
work on the Housing for the Elderly project in Ft. Myers.
Deeson, like Nichols, had heard that there were
"problems" at this project. Prendergast explained to him
about the two gates and the fact that one was for the use of
Industrial's employees. Also Superintendent Lassiter had
stated to Deeson that the picketing would be coming down.
Deeson told Prendergast that he wanted to check with the
union hall about the matter.
Deeson went to see Nell and asked him about going to
work for Industrial at the Housing for the Elderly project
at Ft. Myers. Nell told him that there was a picket line up
over there. Deeson then said that Industrial was a union
contractor with a contract with the Union and that the
Union should try to help the Company out over there to
get the job done and to get out of there. Nell told Deeson
2 Although the actual time of receipt by Respondent of this telegram is
not significant, I find that it was received by Respondent in due course on
the next business day, Monday, February 9, 1970.
3 I do not credit Deeson 's testimony that Nell told him "don't go over
there" (to the Housing for the Elderly project). This was brought out on
cross-examination and not on direct , and I find it to be Deeson 's deduction
from Nell 's remarks and not what was actually said . The General Counsel
would certainly not have omitted from the direct examination such a direct
that the Union did not need Industrial and that if Deeson
went over there he would be working behind the picket
line.3
By telegram dated March 5, 1970 , Industrial notified
Respondent as follows:
Re our wire to you of March 4, 1970. The operator we
intended to send to Ft. Myers advises us that you
refused him permission to work on that job. We
therefore request that you have a qualified operator
and oiler of your choice report for work at that project
at 12:30 p .m. March 6, 1970, and thereafter in
accordance with work schedule as set forth in telegram
of March 4, at 12:30 p .m. on weekdays and 8:00 a.m.
on Saturdays and Sundays. You will be held respon-
sible in damages for your violation of contract and law.
By telegram dated March 9, 1970 , Industrial notified
Respondent as follows:
Please furnish operator and oiler at Housing for the
Elderly jobsite in Ft. Myers, Florida . Starting time will
be 8:00 a.m. until further notice . As per our previous
telegram , there will be no Peacock Construction
Company employees, personnel by deliveries at jobsite
until we have completed our pile driving and left
jobsite . Therefore, we demand that you also remove
your picket immediately. Please also explain absence of
operator and oiler at our Florida Power and Light
Jobsite at Dania . We request this job to be manned
immediately and thereafter until completed.
By telegram dated March 9 , Respondent advised
Industrial as follows:
Regarding wire of March 4 [operator ] in question did
not request permission to work on you job in Fort
Meyers . If he had we would have been happy to have
sent him.
Nell testified that during the period of the picketing at
the Housing for the Elderly project there was ample
employment for members of his Union; that the only
operator qualified for this work who put his name on the
out-of-work list was E.C. Prescott. Nell testified that he
discussed the Housing for the Elderly job with Prescott,
but Prescott told him he did not want to go to Ft. Myers
for work when there was plenty of work near his home.
Nell testified that an operator who has been terminated on
one job may come to the union office and be dispatched to
another job right away and not register on the out-of-work
list, or he may go directly to another job and then call the
Union.
D. Tommy Wells as Agent for Respondent
During the time involved herein , Wells was employed by
Wiggs and Molly Construction Company as an operating
engineer . He is a member of Respondent but holds no
office with it. He resided in the Ft. Myers-Naples area on
the west coast of Florida. Nell called on him for the
inducement if in fact it had been voiced by Nell. Also there is a conflict in
the testimony as to whether or not Deeson mentioned the reserve gate
situation and whether or not he spoke with or saw Business Agent Eskew
before talking with Nell. Irrespective of the credibility questions presented
by this testimony, I find that Nell did tell Deeson that if he went to work for
Industrial at the Housing for the Elderly project, he would be working
behind the Union's picket line . This is based primarily on the fact that this is
exactly the same as Nell told Nichols.
OPERATING ENGINEERS, LOCAL 675 1199
performance of certain jobs or errands for the Union, and
on some matters Wells took it upon himself to assist or
work on.behalf of the Union.
The issue of Wells' agency is important only as to the
statements made by him to Industrial's employees Hart
and Knight and Foreman Miller on March 9, ,and as to
whether or not these remarks are binding on Respondent
to show an inducement -of employees of a secondary
employer to refuse to work.
As previously mentioned, in January 1970, Wells told
Superintendent Lassiter of Industrial that he could not use
employeeShoemake in the Ft. Myers area; Lassiter asked
Wells for a replacement and one reported the following
work day; he also asked that an oiler be referred and one
reported on the following workday. Wells gave Lassiter a
telephone number to call if he needed him on any matter;
Wells came to the project later in the month regarding the
pay rate, for the oiler, and' he `"inquired about the
performance of the operating engineer that had been
referred. Nell called Wells to set up a picket line at the
Housing for the Elderly project and to walk the-picket line,
which he did. In the middle of February 1970, Wells set up
the meeting between Peacock and Nell.'
At one of the membership meetings- of the Union on the
lower west coast of Florida in about December 1969, the
person presiding at the meeting, Howard Eagen, an
equipment foreman for one of the employers in the area,
introduced Tommy Wells as the man who was assisting in
the Abbott-deal-Respondent had a picket line at the Tom
Abbott Company. Eagen testified that he did not remem-
ber whether he got this information from Wells or from a
shop steward. During the Abbott picketing, Wells tele-
phoned Abbott and stated that he and Nell would like to
meet with Abbott to talk over the situation and to try to
resolve the problem. -
During the time that Respondent had its dispute with
Abbott in January 1970, Nell heard from some union
members and possibly others that Wells was telling persons
that he was an assistant business agent for Respondent.
Nell conferred with his attorney, Gopman, on the matter
and was instructed to tell Wells to stop making this
representation. On January 30, 1970, Nell wrote Wells the
Following letter:
This letter is to advise you that we have never
appointed you as either a Business Agent or a Shop
Steward, to conduct Business for this Local Union, in
the Ft. Myers and Naples area.
Any action that you make take in this capacity is
completely on your own and is not condoned by this
office.
On instructions from Nell, Business Agent Eskew told
Wells the same thing to quit running his mouth off and
going around to contractors and acting like a business
agent. -
On two occasions in March and April 1970, Wells
contacted county officials in the Naples area on behalf of
Respondent regarding property owned by the Union in
that county, Collier County. In March 1970, he talked
with County Manager Harmon Tuner about digging a lake
on this property, and he appeared before the Board of
County Commissioners on behalf of the Union on this
matter: In April, he talked with County Engineer Thomas
Peek about some dredging work on this property. Notwith-
standing Nell's letter to Wells, of January 30, 1970, Wells
told Peek, in -the presence of County Manager Turner that
he was the assistant business agent for Respondent on the
lower west coast of Florida. Arrangements were made for
him to appear before the Board of County Commissioners;
at the meeting of the Board, Nell came with Wells and
spoke on behalf of the Union.
Nell testified that. Wells was never appointed as a
business agent for Respondent and was never paid for such
work; that he has asked Wells, to take messages to certain
persons but he was not paid for this; that Wells-was not
authorized or directed to-seek any kind of permit from the
Board of County Commissioners. Nell testified, that 'the
things he asked 'of Wells were things that he would have
asked of any union member.
E. Conclusions
In outlawing secondary boycotts, the Act specifically
states that this prohibition shall not encroach, upon a
union's right to engage in primary picketing. The distinc-
tion between legitimate pri mary activity and banned
secondary activity does not alwayspresent a clear line. The
objectives of any picketing include a desire to influence
others into withholding from a primary employer their
services or trade. "But picketing which induces secondary
employees to respect_a picket line[at,a primary employer's
business .situs] is not the equivalent of picketing which has
an object of inducing those employees to engage in
concerted conduct against their employer in order to force
him to refuse to, deal with the struck' employer."4
The application of these principles Js more difficult
where both the primary and the secondary employers are
engaged in work at a common situs. In the Denver, Bldg.
Trades Council case,5 the Supreme Court agreed with the
Board that a general contractor and a subcontractor
working on the same construction project are nevertheless
separate and independent employers who are doing
business with one another, although the general contractor
is in charge of the project and has some supervision over
the subcontractor's work. Where a union has a dispute with
one and not the other, then to avoid enmeshing,the neutral
in the dispute, the Board and the,courts have recognized
certain criteria, for legitimate primary picketing at, common
situs.6 A preliminary issue in this case is whether or not
Respondent's picketing at the Housing for the Elderly
project conformed to these standards.
The standards to qualify common situs picketing as
primary are as follows: (a) The picketing must be limited to
times when the situs- of the dispute is located on the
property picketed; (b) at the time of the picketing the
primary employer must be engaged in his normal business
at the situs picketed; (c) the picketing must be limited to
places reasonably close to the location of the situs of the
4 Local 767, International Union of Electrical Workers v. N.L.RB., 366
U.S. 667.
5 341 U.S. 675.
6 Moore Dry Dock Company, 92 NLRB 547.
1200 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
dispute; and (d) the picketing must disclose clearly that the
dispute is with the primary employer.
There is no issue as to the place of picketing, which was
carried on at the Peacock gate, nor as to the contents of the
picket sign, which stated, that the dispute was with
Peacock. There is, a dispute as to the effect of Peacock's
removal „of his employees from the project, but I find, that
the Board's-decision in Markwell & Hartz, Inc. 7 disposes of
this point. A primary 'employer is engaged in his normal
business at a project and this is the situs of the dispute as
long as work remains to be performed by his company at
that site. This was particularly so in this case since Peacock
has an .office on the project and as general contractor was
charged with the responsibilities of overseeing, coordinat-
ing and checking the work of . all subcontractors. In
addition to this, there was work-he had scheduled for his
own employees that they would have been performing but
for the fact they were pulled off the, project. '
But the Board has said that the Moore Dry Dock
standards are not to be applied in an "indiscriminate per se
basis." They are to be regarded merely as aids in
determining whether the picketing violates the law-that is,
whether or not an objective of the picketing is to induce
employees of a secondary employer not to work for their
employer. If a union by other conduct or, statements
reveals that its picketing'is also directed at employees of a
secondary employer, then such actions are viewed as
negating the Moore Dry Dock conditions, and the union by
its total conduct has revealed an illegal objective in its
picketing."
In The instance case, a separate gate was set aside for the
use of Industrial's employees. This gate was not picketed
following its' designation as Industrial's gate; Respondent
confined its picketing to the gate designated for primary
employer Peacock.
The' Board and the Courts have sanctioned°the separa-
tion of a primary employer, and secondary employers at a
common situs by the utilization of separate gates. The
intent is to remove the secondary employers from the
sphere'' or, scope of a union's picketing of a primary
employer so that the work of the secondary employer on
the job will not be picketed, that is, will not be behind the
picket line.9
In- a reserve gate situation if a union's statements and
actions ' manifest that the work of a secondary employer is
covered by the picketing, then it is apparent that the
picketing has an illegal objective. In the instant case, both
Nichols and Deeson were told that they "would be working
behind the Union's picket line" if they went to work for
Industrial at the Housing for the Elderly project. Thus; the
4 155 NLRB 319, enfd. 387 F 2d 79 (C.A. 5), also see Brownfield Electric,
Inc., 145, NLRB 1163, and The Kroger Company, 183 NLRB No. 113, where
subcontractors (as'distinguislied from a general contractor)' removed their
employees from common worksites. ' .
8 New Power Wire & Elea ,Co., 1,44 NLRB 1089; Riss & Co, 130 NLRB
943, enfd. 300 F.2d 317 (C.A. 3); Crump, Inc., 112, NLRB 311.
9 The reserve gate requirement set forth by the Supreme Court in the
General Electric Co. case (supra), that the work of the employer using the
reserve gate be unrelated to the normal operations of the primary employer,
is not applicable in construction site cases . Markwell & Hartz, Inc., 155
NLRB 319, enfd. 387 F.2d 79 (CA. 5); Also see Fox Valley Suppliers Assn.,
179 NLRB No. 131.
10 See Cascade Employers Assn., Inc., 172, NLRB No. 127; and Building
picketing was intended to ,include .and cover. Industrial's
work-on theproject.10
I find that by the statements of Nell to_ Nichols rand
Deeson'and by the picketing at the Housing for the Elderly
project -for` the purpose of-inducing and 'encouraging
Industrial's employees not to work, Respondent has
induced and encouraged individuals employed by Industri-
al to -refuse to work for -their employer with an object of
forcing or requiring Industrial to cease doing business with
Peacock., I find that by the picketing' to induce and
encourage employees of Industrial `to refuse' to work for
their` employer, Respondent has threatened;, coerced, -and
restrained 'Industrial to cease doing business with
Peacock."'
The remarks by Tornniy sells to employees Hart and
Knight and Foreman Miller on March 9 `certainly
constituted inducement and encouragement not to work
for, Industrial. The, question is whether or not Wells made
these remarks as agent for, Respondent. Wells was not, a
business agent or,,an assistant business' agent of Respon-
dent. He, held himself out as-having this capacity, but_was
reprimanded by NelFfor, doing so. Nevertheless, Wells
assisted Nell and the Union ona number of, occasions
during-the period involved herein, including a prior strike
,and, picketing on an Abbott Company job, but, : more
important, Nell called -Wells and asked; him to set up the
picket line at the Housing for the Elderly project and to
prepare the picket signs; the,statements_ Wells made to
Hart, Knight, and Miller were in connection with the
conduct of-this picketing, and.wereiin conformity withthe
intent and scope.-of the picketing as expressed by Nell to
Nichols and Dee'son. I find that ,the statements made by
Wells to Hart, Knight and Miller on March 9 were made as
agent for Respondent, and that thereby Respondent has
violated Section 8'(b)(4)(i)(B) of the Act.12
F. The ,Ally 'Issue
Respondent contends i that on or about March 6,
Industrial became an ally of Peacock by agreeing to take
over certain work of Peacock-the staking out of the
pilings, and by thereafter having this work performed by
Duane Hall &.Associates.,
This was not "struckwork" in that .it was not work that
Respondent was seeking' to have assigned to its members;
and it was not work that Peacock was prevented from
performing because of the strike. The instant ,case is more
comparable to the situations in United Marine Division,
and Construction Trades Council of Los Angeles, 162NLRB 605. Both cases
involved reserve gates and statements made by union representatives as to
whether the picketing at a common sits covered the secondary 'employers
assigned to reserve gates . In the Cascade case, employees of the secondary
employer were informed that they "will be crossing a picket line" because
"the entire job was being picketed, not just one area." An unfair,labor
practice was found. In the Building Trades case, the union representative
refused to answer the queries of an employee , similar to those asked of Nell
in the instant case, and stated 'no more than that "there was 'an authorized
picket on the job," ands in this case no illegality was found.
ii S. -14. Kisner & Sons, 134 NLRB 1202.
12 Tennessee Wheel and Rubber Co., 166 NLRB 165; N.L R.B. v. Servette,
Inc., 377 U S. 46.
OPERATING ENGINEERS, LOCAL 675 1201
Local 333, International Longshoremen's Association, and in
-Teamsters General Local Union No. 200,13 where- neutral
employers performed work that would have been per-
formed by employees of a primary employer, not for the
;purpose of helping, the primary employer in his dispute
with the Union, or because the primary employer's
employees were prevented from doing the work but "to
enable him [the neutral employer] to continue his business
on as nearly normal a level as possible." 14
Industrial did not takeover the laying out of the pilings
to help Peacock in his labor dispute with Respondent or
because Peacock employees were prevented from perform-
ing it. Industrial did it solely, in order that his company
could complete his subcontract, which ' was the driving of
the pilings. I therefore find that Industrial was not an
"ally" of Peacock.
G. The 8(b)(7)(C) Issue
could have informed of Industrial's request for operators.
But, other than Prescott, there is no showing that anyone
was available for, referral. (Nichols and Deeson are in
another category; they did not- request referral, but
information and approval for a reassignment.)
Although strong evidence exists- from which one could
suspect that Respondent would not have referred available
operators and oilers to Industrial during the picketing-in
fact, to have done so would have been inconsistent with
other actions taken by Respondent,, its telegram of,March
9 that it "would have been happy to have sent" an operator
notwithstanding-nevertheless it is incumbent upon the
General Counsel first to identify- operators and/or oilers
who could have, been refused referral. I find that, the
evidence is insufficient on this point.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent picketed the Housing for the Elderly project
from February 6 to March 12; no petition under section
9(c) of the Act has been filed. The purpose of the picketing,
as revealed by Nell in' his conversation with Peacock on
February 27, was to get a, bargaining contract covering
operators and oilers for Peacock's tower crane on this
project. I find that--by this picketing Respondent has
violated Section 8(b)(7)(C) of the Act.15
H. Refusal to Refer Employees
By telegram dated February 6, the date the picketing
began, Industrial requested Respondent to refer an
operator and an oiler for work on the Housing for the
Elderly project; the operator and oiler previously referred
being on -the picket line. Requests were repeated by
telegrams dated March 5 and March 9. No operators or
oilers were referred for work on this project by the Union
during the period of the picketing.
Only one operator was on the out-of-work list at any
time during this period, and that was L.C. Prescott. Nell
discussed Industrial's request with him but Prescott told
Nell that he was not interested in going to Ft. Myers as
there was ample work closer to his home.
At its various, projects, Industrial usually has a total work
force of about 10 men who are members of Respondent.
During 1969, about 30 to 35 men were referred from or
cleared by Respondent for work with Industrial. The
General Counsel contends that in view of Respondent's
past record of referring and clearing men for Industrial, its
failure to -refer employees during the picketing was a
deliberate refusal, 'and particularly so in view of Respon-
dent's inducement of Nichols land Deeson not to work on
the project. -
It is very likely that, in view of the large membership- of
Respondent-2000 to 2500 members-and Respondent's
practice of referring men from one job to another without
using the out-of-work list when work is plentiful, there
were some men, in addition to Prescott, that Respondent
13 107 NLRB 686 and 183 NLRB No. 39, respectively.
14 In the Teamster case, the employees of the primary employer were
doing the work of unloading their trucks, and the secondary employer
assisted them in order that he could separate himself more quickly from the
Those activities of Respondent, set ,forth in section III,
above found to constitute unfair labor practices, occurring
in connection with the businesses of,the.Employers, as set
forth 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. -
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1, Peacock Construction Company and Industrial
Contracting Company are employers engaged in commerce
and in an industry affecting commerce within the meaning
of Section 2(6) and (7) and Section 8(b)(4) of the Act.
2. International Union of Operating Engineers, Local
675, AFL-CIO, is a labor organization within the meaning
of,Section 2(5) of the Act.- -
3. By picketing the Housing for the , Elderly project in
Ft. Myers, Florida, from February 6 to March 12, 1970, for
an object of forcing or requiring Peacock Construction
Company to recognize and bargain with Respondent as the
bargaining representative of certain of its employees and
with an object of forcing and requiring certain employees
of Peacock Construction Company to accept or select
Respondent as their bargaining representative, Respondent
not being currently certified as the representative of these
employees and a petition under Section-9(c) of the Act not
being filed within a reasonable period of time from the
commencement of such picketing, Respondent has en-
gaged,in an unfair labor practice in violation of Section
8(b)(7)(C) of the Act.
4. By statements of inducement and' encouragement
not to work made by Tommy Wells on March 9, 1970, as
agent for Respondent, to employees and a foreman of
Industrial, and by statements made by Business Agent Nell
to employees of Industrial that they would be working
situs of the dispute.
18 United Mine Workers of America and District 12, 177 NLRB No. 27;
Retail Stores Union, 141 NLRB 991; Also, on February 6, Wells told
Industrial's Superintendent Lassiter the same thing.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behind Respondent's picket, line if they worked for
Industrial at the Housing for the Elderly project, and by
picketing at the Housing for the 'Elderly project from
February 6 to March 12, 1970, with an object of inducing
and encouraging -individuals employed by Industrial
Contracting Company to engage in a strike or a refusal to
perform any services, for Industrial, all for an object of
forcing or requiring ,Industrial Contracting Company to
cease doing' business 'with, Peacock, Construction Company,
Respondent has thereby engaged in,unfair labor practices
in - -- violation of"'-Section 8(bX4Xi)(B) of the Act.
5. By , picketing at the Housing for the Elderly project
from February 6 to March 12, 1970, for an object of
inducing and encouraging individuals employed by Indus-
trial Contracting Company to engage in a, strike or a
refusal to perform any service for Industrial, with an object
of forcing or requiring Industrial to cease doing business
with Peacock Construction Company. Respondent has
thereby engaged in an unfair labor practice in violation of
Section 8(b)(4)(ii)(B) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting,"commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Respondent has not refused to refer employees to
Industrial Contracting Company and has not engaged in
an unfair labor practice by the fact that its picketing at the
Housing for the Elderly project was conducted at times
when employees of Peacock 'Construction Company were
not at said premises.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(b)(7)(C) and Section
8(bX4)(i) and (iiXB) of the Act; I- shall recommend that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire'record, and`pursuant to Section 10(c)of the
Act, ' I hereby issue the following recommended:
ORDER 16
Respondent , International Union of Operating Engi-
neers, Local 675, 'AFL-CIO, its' officers, agents, and
representatives shall:
16 In the event no,exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and recommended Order herein
shall , as provided in Section ° 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes.
17-In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the noticereading "POSTED
1. , Cease,and desist from:
(a) Picketing Peacock Construction Company for, an
object of forcingor requiring :said Employer -to recognize
or bargain with '-the Union-as °the representative of its
employees or to force or require''the-employees of said
Employer , to accept or select ` the Union as their collective-
bargaining representative.
(b) Inducing or encouraging individuals employed by
Industrial Contracting Company to strike °o`'refuse in the
course of their employment to use, process , transport, or
otherwise handle or work on any goods , articles; materials,
or commodities or' to perform any service for Industrial
Contracting Company with an object of forcing or
requiring said Employer to cease doing business with
Peacock Construction Company.
(c) Threatening, coercing, or restraining Industrial
Contracting Company with an object of forcing or
requiring said Employer to cease doing business with
Peacock Construction Company.
2. Take the following affirmative action, designed, to
effectuate the policies of the Act:
(a) Post in conspicuous places at its business office,aand
meeting halls, including , all places where notices to its
members are customarily posted, copies of the, attached
notice marked "Appendix;' 17 Copies of said notice, to be
furnished by the Regional Director for Region . 12, shall,
after being duly signed by an authorized representative of
Respondent, be posted by it immediately 'upon receipt
thereof and be maintained by it for 60 consecutive days.
Reasonable steps shall be taken by ' Resondent, to insure
that such notices are not altered, defaced , or covered by
any other material.
(b) Deliver or mail signed copies 'of said notice'to the
Regional Director for Region 12 for posting by Peacock
Construction Company and by Industrial Contracting
Company, if willing, at , locations where notices to employ-
ees are customarily posted. -
(c) Notify the 'Regional Director for Region 12, in
writing, within 20 days from the receipt 'by Respondent of
a copy, of this Decision, what steps it has taken to comply
herewith.18
IT Is FURTHER RECOMMENDED that those portions of the
complaint be dismissed which allege unfair labor practices
by refusing to refer employees to Industrial and by
picketing' while Peacock's employees were absent from the
Housing for the Elderlyproject. '
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARIY' shall
be changed to read "POSTED. PURSUANT TO A JUDGMENT OF,THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR REI.A'1'IONS BOARD." '
-19 In ' the event that this recommended Order is ' adopted by the' Board
after exceptions have been filed , notify said Regional Director ,' in writing,
within 20 days from the date of this order, what steps Respondent has taken
to comply herewith.