Orange Belt District Council of Painters No. 48

National Labor Relations Board - Board Decisions

Oct 23, 1962

139 N.L.R.B. 383 (N.L.R.B. 1962)

ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 383
V. FINDINGS OF FACT
A. The business of the Respondents
Since the allegations of the complaint of the facts on which the jurisdiction of the
Board is predicated in this case , are admitted by the Respondents in their amended
answer herein , I find that the Respondents , operating as a single integrated enter-
prise, are engaged, at Dallas, Texas, in the manufacture , sale, and distribution of
lightweight aggregates and of other structural products , that during the 12-month
period immediately preceding November 21, 1961 , they sold and shipped such prod-
ucts, of a value in excess of $50,000, directly to customers in States other than the
State of Texas and that now and at all times material to the issues herein they are
and have been "employer[s ]," as defined in Section 2(2) of the Act, engaged in
"commerce," as defined in Section 2(6) of the Act.
B. The labor organization involved
The General Counsel alleged , the Respondents admitted in their said amended
answer, and I find that the Charging Party is a "labor organization," as defined in
Section 2(5) of the Act.
VI. CONCLUSION OF LAW
On the basis of the foregoing discussions and findings I conclude that the Re-
spondents have not violated Section 8 ( a) 1) and/or (3) of the Act as alleged in the
complaint herein.
[Recommendations omitted from publication.]
Orange Belt District Council of Painters #48, AFL-CIO, its
Affiliated Local Unions, and its Agents and Calhoun Drywall
Company
Building and Construction Trades Council of San Bernardino
and Riverside Counties , AFL-CIO and Calhoun Drywall Com-
pany. Cases Nos. 21-CC-449-1 and 21-CC-449-2. October 23,
1962
DECISION AND ORDER
On April 10, 1962, Trial Examiner John H. Dorsey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel and the Charging Party filed excep-
tions to the Intermediate Report and supporting briefs.
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 In-
termediate Report, the exceptions and the briefs, and the entire record
in this case,' and hereby adopts the findings, conclusions, and recom-
1 Respondents have moved to strike certain portions of the brief of the Charging Party
on the ground that they include matters outside the record. Since , in reaching our deci-
sion herein , we have only considered those matters which are part of the record , we deny
the motion.
139 NLRB No. 32.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations of the Trial Examiner only to the extent they are con-
sistent with our decision herein.
We disagree with the Trial Examiner's finding that Respondents'
threat to picket Oberman did not violate Section 8(b) (4) (ii) (B) of
the Act.
Respondents' threat to picket is contained in a letter which they
caused to be sent to Oberman on October 5. 1961.2 The Trial Ex-
aminer found that the threat to picket for alleged violation of para-
graph 5 referred to in that letter related only to a contractual obliga-
tion of Oberman to pay certain fringe benefits to the Respondents, as
its subcontractor, Calhoun, failed to do so. He also found that the
threat to picket did not relate to the hot-cargo provisions of paragraph
4, for alleged breach of which Respondents were alone threatening to
sue Oberman. As he reasoned that paragraph 5, unlike paragraph 4,
did not fall within the proscription of Section 8(e), excluding the
proviso thereto for the construction industry, he construed Respond-
ents' threat to picket as confined to lawful conduct such as a strike to
enforce compliance with a legally unencumbered provision. We
cannot ignore, however, the interrelationship between paragraphs 4
and 5.
Paragraph 4 refers to the obligation of a contractor to confine his
subcontracting to a "subcontractor signatory to an executed current
agreement with a union affiliated with the [Respondent] Council."
Paragraph 5 speaks of the consequences to the contractor of a sub-
contractor's failure "to pay fringe benefits provided under the appro-
priate agreement with the union affiliated with the [Respondent]
Council." It is apparent that the "current agreement" referred to
2 This letter reads in pertinent part:
We wish to call your attention to certain provisions of the collective bargaining
agreement which you appear to be violating at this time
There are two separate independent provisions of the contract that you are violat-
ing Paragraph 4 provides that if you subcontract any work, it shall be to a sub-
contractor signatory to an executed current agreement with a union affiliated with
the Council. We are informed that you have subcontracted certain work to Calhoun
Dry wall, who is not signatory to such a collective bargaining agreement We put
you on notice that unless this breach of the agreement is rectified within twenty-four
(24) hours, we shall turn this matter over to our attorneys to file suit against you
Paragraph 5 of the agreement provides that in the event you subcontract any
work and the sub-contractor fails to pay fringe benefits provided under the appro-
priate agreement with the union affiliated with the Council, that you become personally
liable for such sums and such sums become due and payable by you immediately
We are informed that you have sub-contracted certain work to Calhoun Dry Wall
This work properly falls within the jurisdiction of the painters union which is affili-
ated with this Council. Under the standard agreement presently in effect between
painters union and the industry, the following fringe benefits are due and payable:
Health and welfare__________________________________ 14 cents per hour
Contract administration______________________________ 2 cents per hour
Vacation____________________________________________ 10 cents per hour
Your sub-contractor has failed to make these payments and unless you make the
payments within twenty-four (24) hours, we shall take all necessary action , including
peaceful picketing, to compel compliance with paragraph 5 of the agreement
ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 385
in paragraph 5 and the "appropriate agreement" referred to in para-
graph 4 are necessarily one and the same. It is further apparent that
a contractor who failed to comply with paragraph 4-admittedly a
hot-cargo provision-would be required to make the payments called
for under paragraph 5, regardless of the conditions of employment
applicable to the subcontractor's employees. Paragraph 5 is thus, in
effect, a penalty imposed on the contractor for failure to comply with
the provisions of paragraph 4. In these circumstances we conclude
that Respondents' threat to picket Oberman was necessarily aimed at
enforcement of paragraph 4, through enforcement of the penalty pro-
vided in paragraph 5. As enforcement of paragraph 4 would require
Oberman to cease doing business with Calhoun, we find that this was an
object of Respondents' threat. Accordingly, as a hot-cargo contract,
even if lawful under Section 8(a), is not a defense to conduct which
violates Section 8(b) (4),3 we find in view of the foregoing that Re-
spondents' threat to picket Oberman violated Section 8(b) (4) (ii) (B)
of the Act.4
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent, Orange Belt District Council of Painters #48,
AFL-CIO, its officers, representatives, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Threatening, coercing, or restraining G. Oberman Company
or any other employer, by a threat to picket or other unlawful con-
duct, where in any case an object thereof is to force or require said
employer to cease doing business with Calhoun Drywall Company.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places at the business offices and meeting
halls of the Respondent Union and its affiliated locals and all other
places where notices to members of Respondent Union, its agents, and
affiliated locals are customarily posted, copies of the notice attached
hereto marked "Appendix A." I Copies of said notice, to be furnished
3 Colson and Stevens Construction Co., Inc, 137 NLRB 1650.
' In view of our decision herein, we find it unnecessary to pass on the additional con-
tention of the General Counsel that paragraph 5 standing alone would be a hot-cargo
provision in the construction industry and thus no defense to the alleged violation of
Section 8(b) (4) (ii) (B). Nor do we pass on the Trial Examiner's conclusion that Re-
spondents' threat to file suit for the alleged breach of paragraph 4 did not violate this
section of the Act, as the General Counsel did not allege a violation on that basis
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director for the Twenty-first Region shall, after be-
ing duly signed by the authorized representative of the Respondent
Union, be posted by the Respondent Union immediately upon receipt
thereof, and be maintained for a period of 60 consecutive days there-
after. Reasonable steps shall be taken to insure that the notices are
not altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for the Twenty-first Region for posting by G. Oberman Com-
pany, the Company willing, at all locations where notices to its em-
ployees are customarily posted.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
B. The Respondent, Building and Construction Trades Council of
San Bernardino and Riverside Counties, AFL-CIO, its officers, repre-
sentatives, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Threatening, coercing or restraining G. Oberman Company,
or any other employer, by a threat to picket or other unlawful conduct,
where in any case an object thereof is to force or require said em-
ployer to cease doing business with Calhoun Drywall Company.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post in conspicuous places at the Respondent Union's business
offices, meeting halls, and all places where notices to members are cus-
tomarily posted, copies of the notice attached hereto marked "Ap-
pendix B." 8 Copies of said notice, to be furnished by the Regional
Director for the Twenty-first Region shall, after being duly signed
by the authorized representative of the Respondent Union, be posted
by the Respondent Union immediately upon receipt thereof, and be
maintained for a period of 60 consecutive days thereafter. Reason-
able steps shall be taken to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for the Twenty-first Region for posting by G. Oberman
Company, the Company willing, at all locations where notices to its
employees are customarily posted.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
6 See footnote 5.
ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 387
IT IS FURTHER ORDERED that the complaint be dismissed insofar as,
it alleges a violation of Section 8 (b) (4) (i) (13).
CHAIRMAN MCCULLOCH and MEMBER RODGERS took no part in the
consideration of the above Decision and Order.
APPENDIX A
To ALL OUR MEMBERS AND AGENTS, ALL MEMBERS OF OUR AF-
FILIATED LOCAL UNIONS, AND ALL EMPLOYEES OF G. OBERMAN
COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT threaten, coerce, or restrain G. Oberman Company
or any other employer by a threat to picket or other unlawful
conduct where in any case an object thereof is to force or require
said employer to cease doing business with Calhoun Drywall
Company.
ORANGE BELT DISTRICT COUNCIL
OF PAINTERS #48, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 S. Broadway, Los Angeles,
California, Telephone Number, Richmond 9-4711 Extension 1031, if
they have any question concerning this notice or compliance with its
provisions.
APPENDIX B
To ALL OUR MEMBERS AND ALL EMPLOYEES Or
G. OBERMAN COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that:
WE WILL NOT threaten, coerce or restrain G. Oberman Coin-
pany or any other employer by a threat to picket or other unlaw-
ful conduct where in any case an object thereof is to force or re-
672010-63-vol. 13 9-2 6
.383 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quire said employer to cease doing business with Calhoun Dry
wall Company.
BUILDING AND CONSTRUCTION TRADES
COUNCIL OF SAN BERNARDINO AND
RIVERSIDE COUNTIES, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 S. Broadway, Los Angeles,
California, Telephone Number, Richmond 9-4711 Extension 1031, if
they have any question concerning this notice or compliance with its
provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Frank A. Calhoun, an individual doing business as Calhoun
Drywall Company,' herein called Calhoun, complaint issued on January 26, 1962,
alleging that Orange Belt District Council of Painters #48, AFL-CIO, its Affiliated
Local Unions, and its agents herein called Respondent Painters; and Building and
Construction Trades Council of San Bernardino and Riverside Counties, AFL-CIO,
herein called Respondent Council, violated Section 8(b) (4) (i) (B) and 8(b) (4) (ii)
(B) of the National Labor Relations Act, as amended, herein called the Act.
Respondent Painters and Respondent Council are jointly referred to herein as
Respondents. On January 30, 1962, Respondent filed an answer denying the alleged
violations of the Act.
Hearing on the issues raised by the pleadings were held at Los Angeles, California,
on March 7, 1962, before Trial Examiner John H. Dorsey. The General Counsel
and Respondents were represented by attorneys. The Charging Party appeared in
his own behalf. The parties waived oral argument. After the hearing each of the
parties filed a brief.
Upon consideration of the entire record, the briefs, and upon my observation of
the demeanor of the witnesses, I make the following findings and conclusions:
FINDINGS OF FACT
1. JURISDICTION
Frank A. Calhoun, the Charging Party, is an individual doing business as Calhoun
Drywall Company. He is engaged in business at San Bernardino , California, as a
drywall contractor.
A stipulation entered into by the parties to this proceeding shows that Calhoun
since June 1959 performed services valued in excess of $19,000 on military construc-
tion projects at several Air Force bases in California . In connection with its business
during the past year, Calhoun purchased and received goods, materials and supplies
directly from points located outside the State of California valued in excess of
$5,000.
In establishing or adopting a jurisdictional standard for employers engaged in
national defense, the Board in Ready Mixed Concrete & Materials, Inc., 122 NLRB
3 In Case No . 21-CC-449-1 the charge was filed on October 5, 1961 ; an amended charge
was filed January 5, 1962
In Case No 21-CC-449-2 the charge was filed on January 5, 1962 The cases were
consolidated for hearing
ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 389
318, stated as follows: "The Board has determined that it best effectuates the policies
of the Act to assert jurisdiction over all enterprises, as to which the Board has statu-
tory jurisdiction, whose operations exert a substantial impact on the national defense,
irrespective of whether the enterprise's operations satisfy any of the Board's other
jurisdictional standards. In adopting this standard, the Board has eliminated the
requirements that an enterprise's national defense operations must be directly related
to national defenses, must be performed pursuant to contracts or subcontracts with
the Government, and must amount at least to $100,000 a year.. ."
The Board found in its Decision and Direction of Election in Calhoun Drywall
Company Cases Nos. 21-RM-674, 21-RC-634, and 21-RM-675 (not published in
NLRB volumes), dated September 14, 1961, that Calhoun's operations met ,the test of
legal jurisdiction, that its services have a substantial impact on national defense, and
that therefore it will effectuate the policies of the Act to assert jurisdiction over the
Employer. The Trial Examiner is required to take official notice of the Board's
decision in said cases. See J. S. Abercrombie Company, 83 NLRB 524, Seine and
Line Fishermen's Union, et al. (William J. Horner, et al), 136 NLRB ,1. I find
that Calhoun is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
Insofar as here material Calhoun is a subcontractor of G. Oberman Company,
herein called Oberman. Since the Board has jurisdiction of the primary employer,
Calhoun, it has jurisdiction of the entire controversy. Truck Drivers Local Union
No. 649, etc. (Jamestown Builders Exchange, Inc.), 93 NLRB 386. It is not neces-
sary to show that the secondary employer, Oberman, meets any jurisdictional stand-
ard but merely that it is engaged in an industry affecting commerce. Sheet Metal
Workers Association (S. M. Kisner & Sons), 131 NLRB 1196. I find that Oberman
is so engaged.
II. LABOR ORGANIZATIONS INVOLVED
The parties stipulated that Respondent Painters and Respondent Council are labor
organizations within the meaning of Section 2(5) of the Act. I so find.
III. FINDINGS AND CONCLUSIONS RELATIVE TO THE ALLEGED UNFAIR LABOR PRACTICES
A. Stipulation of facts
The parties entered into a stipulation of facts as follows:
7. At all times material herein , G. Oberman Company and Respondent
Council have been signatories to a collective-bargaining agreement containing
provisions covered by Section 8 (e) of the Act, which, in effect , require G. Ober-
man Company to cease doing business with subcontractors who are not signato-
ries to contracts with Respondent Council or with constituent or affiliated labor
organizations.
8 Frank A. Calhoun is not a signatory to contracts with Respondents or with
constituent or affiliated labor organizations covering his employees engaged in
hanging, taping , and texturing of dry walls.
9. On or about October 5, 1961 , the Respondents caused to be sent to G.
Oberman Company, which was received by Oberman on October 5, 1961, a
letter which recited:
We wish to call your attention to certain provisions of the collective
bargaining agreement which you appear to be violating at this time.
There are two separate independent provisions of the contract that you
are violating . Paragraph 4 provides that if you subcontract any work, it
shall be to a subcontractor signatory to an executed current agreement with
a union affiliated with the Council . We are informed that you have sub-
contracted certain work to Calhoun Dry Wall, who is not signatory to such
a collective bargaining agreement . We put you on notice that unless this
breach of the agreement is rectified within twenty -four (24) hours, we shall
turn this matter over to our attorneys to file suit against you.
Paragraph 5 of the agreement provides that in the event you subcontract
any work and the sub -contractor fails to pay fringe benefits provided under
the appropriate agreement with the union affiliated with the Council, that
you become personally liable for such sums and such sums become due
and payable by you immediately.
We are informed that you have sub -contracted certain work to Calhoun
Dry Wall. This work properly falls within the jurisdiction of the painters
union which is affiliated with this Council. Under the standard agreement
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presently in effect between painters union and the industry , the following
fringe benefits are due and payable:
Health and welfare________________________ 14 cents per hour
Contract administration____________________ 2 cents per hour
Vacation -------------------------------- 10 cents per hour
Your sub-contractor has failed to make these payments and unless you
make the payments within twenty-four (24) hours, we shall take all neces-
sary action, including peaceful picketing, to compel compliance with para-
graph 5 of the agreement.
B. The alleged violation of Section 8 ( b)(4)(ii)(B)
The complaint alleges a violation of Section 8(b)(4)(i)(B) of the Act. The
General Counsel adduced no evidence in support of the allegation. It, therefore,
fails for lack of proof. I recommend its dismissal.
C. The alleged violation of Section 8(b) (4) (ii) (B)
The complaint alleges that Respondents violated Section 8(b) (4) (ti) (B) of the,
Act.
1. The facts
The facts are set forth in the stipulation recited in A, above.
2. Pertinent statutory provisions
The pertinent statutory provisions of the Act are:
SEC. 8(e). It shall be an unfair labor practice for any labor organization
and any employer to enter into any contract or agreement, express or implied,
whereby such employer ceases or refrains or agrees ... to cease doing business
with any other person, and any contract or agreement entered into heretofore
or hereafter containing such an agreement shall be to such extent unenforcible
and void; Provided, that nothing in this subsection (e) shall apply to an agree-
ment between a labor organization and an employer in the construction indus-
try relating to the contracting or subcontracting of work to be done at the
site of the construction....
SEC. 8(b) (4) (ii) (B). It shall be an unfair labor practice for a labor
organization or its agents-
to threaten, coerce, or restrain any person engaged in commerce or in an
industry affecting commerce, where in either case an object thereof is:
forcing or requiring any person ... to cease doing business with any other
person....
3. Findings
The following findings are supported by the stipulated facts:
(a) Respondent Council and Oberman are parties to a contract in which Ober-
man agrees to cease doing business with subcontractors who are not signatories to
contracts with Respondent Council or with constituent or affiliated labor organiza-
tions. By virtue of the proviso in Section 8(e) relating to the construction industry,
the entering into the contract was not an unfair labor pracice.
(b) Calhoun is not a signatory to a contract or contracts with Respondent Coun-
cil or with constituent or affiliated labor organization.
(c) Oberman by subcontracting work to Calhoun, to be performed at a con-
struction site , violated the terms of the contract between Respondent Council and
Oberman.
(d) Oberman received a letter from Respondents on October 5, 1961, in which
Respondents stated that unless the breach of agreement found in (c), above, "is
rectified within twenty-four (24) hours, we shall turn this matter over to our at-
torneys to file suit against you."
(e) An object of the letter was to force or require Oberman to cease doing
business with Calhoun.
The letter also refers to a contractual obligation of Oberman to pay certain fringe
benefits to the Respondents in the event its subcontractors fail to do so. It goes on
ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 391
to say Calhoun has not made such payments and if Oberman fails to do so Re-
spondents "shall take all necessary action , including peaceful picketing, to compel
compliance with. .. the agreement "
"Congress has been rather specific when it has come to outlaw particular economic
weapons on the part of unions." N.L.R.B. v. Insurance Agents' International Union
(Prudential Insurance Company), 361 U.S. 477.
A contract containing a provision(s) violative of Section 8(e) remains in force
and effect except to the extent of such unlawful provision(s). I find no provision
of the Act which prohibits the right to picket peacefully to seek compliance with
contract provisions which do not come within the prohibitions of Section 8(e)
excluding the provisos.
Picketing has been equated with striking for the purposes of Section 13 of the
Act. Section 13 "declares a rule of construction which cautions against an expansive
reading of that section which would adversely affect the right to strike, unless the
congressional purpose to give it that meaning persuasively appears either from the
structure or history of the statute . Section 13 is a command of Congress to the
courts to resolve doubts and ambiguities in favor of an interpretation . . . which
safeguards the right to strike.. N.L R.B. v. Drivers, Chauffeurs and Helpers
Local Union No. 639 (Curtis Bros.), 362 U.S. 274.
Section 8(e) makes severable the lawful and unlawful provisions of a contract.
The lawful provisions must be treated as they would be absent the "unenforcible
and void."
I find that Respondents' statement that it would engage in "peaceful picketing"
to compel compliance with a legally unencumbered lawful provision of the contract
cannot be construed as a violation of the Act.
4. The issues
This case gives rise to two issues:
(a) Can a union, which is party to a contract provision which would violate
Section 8(e) of the Act except or the exemption granted to the construction indus-
try, engage in conduct prohibited by Section 8(b) (4) (ii) (B) to obtain compliance
with the provision by the employer; and, if it cannot
(b) Is a communication to the employer that the union will initiate legal action
to enforce such a provision within the meaning of "to threaten, coerce, or restrain"
as used in Section 8 (b) (4) (ii) (B) of the Act.
5. Resolution of the issues
The conference report on the bill (S. 1555) which became The Labor-Manage-
ment Reporting and Disclosure Act of 1959, 29 USC 411, disposes of the first issue-
whether a party to a contract provision exempted from Section 8(e) by reason
of the proviso relating to the construction industry may seek to compel com-
pliance with such provision by engaging in conduct proscribed by Section 8(b) (4).
Concerning the proviso the report states (H.R. No. 1147 on S. 1555, 86th Cong.,
1st less., at pp. 39-40) :
It should be particularly noted that the proviso relates only and exclusively
to the contracting or subcontracting of work to be done at the site of the con-
struction The proviso does not exempt from section 8 (e) agreements relating
to supplies or other products or materials shipped or otherwise transported to
and delivered on the site of the construction. The committee of conference does
not intend that this proviso should be construed so as to change the present state
of the law with respect to the validity of this specific type of agreement relating
to work to be done at the site of the construction project or to remove the
limitations which the present law imposes with respect to such agreements.
Picketing to enforce such contracts would be illegal under the Sand Door case
(Local 1796, United Brotherhood of Carpenters v. NL.R.B., 357 U.S. 93
(1958) ). To the extent that such agreements are legal today under section
8(b)(4) of the National Labor Relations Act, as amended, the proviso would
prevent such legality from being affected by section 8(e). The proviso applies
only to section 8(e) and therefore leaves unaffected the law developed under
section 8(b)(4). The Denver Building Trades case [341 U.S. 675] and the
Moore Drydock case [81 NLRB 1108] would remain in full force and effect.
The proviso is not intended to limit, change, or modify the present state of the
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
law with respect to picketing at the site of a construction project. Restrictions
and limitations imposed upon such picketing under present law as interpreted,
for example, in the U.S. Supreme Court decision in the Denver Building Trades
case would remain in full force and effect It is not intended that the proviso
change the existing law with respect to judicial enforcement of these contracts
or with respect to the legality of a strike to obtain such a contract.2
With the conference report as authority, I find, although it was lawful for Re-
spondents to enter into an agreement with Oberman to cease doing business with
others, Respondents cannot lawfully engage in conduct prohibited under Section
8(b) (4) with "an object" to compel compliance with the agreement. Further, I
find that Respondents have the legal right to seek judicial enforcement of the
agreement .3
Remaining is the issue as to whether Respondents having the right to seek judicial
enforcement of the agreement violated Section 8(b) (4) (ii) (B) by communicating
to Oberman their intention to exercise such right if Oberman continued to breach the
agreement.
There can be no question that "an object" of the communication was "forcing or
requiring" (Section 8(b) (4) (u) (B)) Oberman to cease doing business with Calhoun
The issue narrows as to whether such a communication comes within the ambit
of the words "to threaten, coerce, or restrain" in Section 8(b) (4) (ii) Neither the
wording of the statute or its legislative history supplies a ready answer.
It is hornbook that words in a statute are used in their commonly accepted sense
unless otherwise defined. Applying this test an expression of intent to initiate a
lawsuit for breach of an agreement can be construed as a threat or coercive, also, it
might restrain future breaches of the agreement. Consequently, if this test be
applied , in vacuo, Respondents violated the Act. But, more must be considered.
The Supreme Court has admonished that "per se" rules are not controlling in the
interpretation and application of the Act-the "totality of conduct" must be con-
sidered. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149.
It is a legal axiom that a party to a contract has the right to initiate judicial action
for an alleged breach of the agreement Whether the contract is lawful and whether
it has been breached then become issues for judicial determination.
Recognizing the hornbook principle and the legal right brings us between Scylla
and Charybdis. Can one be favored, the other rejected? The dilemma revealed
by the query poses an anomalous paradox Such a confrontation compels recourse
to the spirit of the Act rather than literal construction.
Reading the Act as a whole it is apparent that the Congress did not intend to
limit, change, or modify legal rights existing at the time of its enactment, including
amendments, other than to the extent specified To this add: (1) the declaration
in the Conference Report that "It is not intended that the proviso [of Section 8(e)
relating to the construction industry] change the existing law with respect to judicial
enforcement of these contracts . . ."; and, (2) the Congress imposed no restraint
on the usual procedure of communication between the parties prior to initiating
formal action. Now the question: Whether it was the intent of the Congress that
a communication of intention to exercise a vested legal right should be held to be
a threat, coercion, or restraint in violation of Section 8(b) (4) (ii) (B) of the Act?
It is common practice for a contract disputant to make known his grievance to
the other party before resorting to legal action. This is done with the hope of
amicably settling the dispute. It is a practice favored by the courts to avoid need-
less litigation.
I hold that the Congress did not intend that a communication expressing the
intention to exercise a legal right falls within the unlawful conduct contemplated by
the terms "to threaten, coerce, or restrain." Such a communication is no more a
threat, coercion, or restraint than the service of a summons by a process server.
Therefore, I find that Respondents have not violated Section 8(b)(4)(ii)(B) as
alleged in the complaint.
[Recommendations omitted from publication I
2 Accord: The remarks of then Senator Kennedy explaining the conference report to the
Senate. 105 Cong Rec. 1433 (daily ed. Sept. 3, 1959 )
8 Whether the action be initiated In a State or Federal court substantive Federal labor
law prevails Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U S 95