Orange Belt District Council of Painters No. 48

National Labor Relations Board - Board Decisions

Oct 29, 1965

155 N.L.R.B. 441 (N.L.R.B. 1965)

ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 441
Orange Belt District Council of Painters No. 48, AFL-CIO and
Claremont Painting and Decorating ; Interstate Employers As-
sociation , Inc. Case No. 31-CC-816. October 29, 1965
DECISION AND ORDER
Upon charges duly filed on December 3,1964, by Claremont Painting
and Decorating, and Interstate Employers Association, Inc., herein
referred to as the Charging Parties, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Director for Region 21,
issued a complaint dated February 19, 1965, against the Orange Belt
District Council of Painters No. 48, AFL-CIO, herein called Respond-
ent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8(b) (4) (i) and
(ii) (B) of the National Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing were duly served upon the
parties. On March 4, 1965, the Respondent filed its answer admitting
certain allegations of the complaint, but denying the commission of any
unfair labor practices.
On May 21,1965, the Respondent, the Charging Parties, and the Gen-
eral Counsel entered into a stipulation and filed a joint motion to trans-
fer this proceeding directly to the Board for findings of fact, conclu-
sions of law, and for the issuance of a Decision and Order after the
filing of briefs and without further hearing. The stipulation states in
substance that the parties waive their rights to a hearing before a Trial
Examiner and to the issuance of a Trial Examiner's decision, and that
the charge, complaint, answer, the stipulation, and the transcript of
testimony complied, and exhibits received in evidence at a hearing
before a United States District Court, Southern District of California,
Central Division, in the case of Ralph E. Kennedy, Regional Director
(Claremont Painting and Decorating) v. Orange Belt District Council
of Painters No. 48, Civil Case No. 65-248-PH,1 should constitute the
entire record in this case. On June 24, 1965, the Board approved the
stipulation, ordered transferral of the proceeding to the Board, and
granted permission to the parties to file briefs. Briefs were filed by the
Respondent and the General Counsel.
Upon the basis of the stipulation, the briefs, and the entire record
in the case, the Board 2 makes the following :
I Pursuant to a proceeding Instituted under Section 10(1) of the Act, an order enjoining
Respondent ' s picketing issued on March 2, 1965
'Pursuant to Section 3(b) of the Act , the Board has delegated Its powers In connection
with this case to a three member panel [ Members Fanning , Brown, and Zagorla].
155 NLRB No. 48.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
Tri-County Chapter, Painting and Decorating Contractors of Amer-
ica, Inc., herein called Association, represents member firms, including
Claremont, in the negotiation of collective-bargaining agreements with
labor organizations in the Southern California area. In the operation
of their businesses, employer members of Association annually per-
form services outside the State of California valued in excess of
$50,000, and annually purchase and receive goods, materials, and sup-
plies originating outside the State of California valued in excess of
$50,000. Claremont is engaged at Claremont, California, as a painting
contractor in the building and construction industry. In connection
with its business, Claremont annually purchases and receives goods,
materials, and supplies originating outside the State of California
valued at substantial amounts. In the course and conduct of its busi-
ness, Claremont was, at all times material herein, engaged, pursuant to
subcontracts, in painting for general contractors, Alta Mesa Homes,
herein called Alta, Kirby Construction Company, herein called Kirby,
and Roger Land Company, herein called Roger. Alta was then engaged
in the construction at Corona, California, of a residential tract consist-
ing of approximately 41 houses, herein called Alta project; Kirby was
engaged in the construction at Rowland Hills district of California, of
an 84-unit apartment project, herein called Kirby project; and Roger
was engaged in the construction at Claremont, California, of a resi-
dential tract consisting of approximately 57 houses, herein called
Roger project. In addition to Claremont's contract, Alta, Kirby, and
Roger each subcontracted portions of the construction work at their
respective projects to various subcontractors. At the Alta project,
Alta subcontracted the plastering to Tanner and Macy, herein called
Tanner, and the drywall work to Modern Interiors, herein called Mod-
ern. For use at their respective construction projects, Alta, Kirby, and
Roger, and their subcontractors, have purchased and received goods,
materials, and supplies originating outside the State of California
valued, in the aggregate, in the excess of $50,000.
On the basis of the foregoing facts, the parties admit, and we find,
that Claremont is and has been, at all times material herein, an
Employer engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the policies of the Act to
assert jurisdiction herein. We also find that Alta, Kirby, Roger, Tan-
ner, and Modern are persons engaged in commerce or in an industry
affecting commerce.
ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 443
II. THE LABOR ORGANIZATION INVOLVED
Orange Belt District Council of Painters No. 48 , AFL-CIO, is, and
has been at all times material to this case , a labor organization within
the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
In the period covered by the complaint, Claremont was the painting
subcontractor on each of the Alta, Kirby, and Roger construction proj-
ects. At all times material, Respondent has engaged in a labor dispute
with Claremont, but has had no dispute with either Alta, Kirby, Roger,
or other of their subcontractors. In furtherance and support of its dis-
pute with Claremont, the Respondent picketed at the three named con-
struction sites beginning in December 1964,3 with signs which read :
Claremont Painting is Unfair
and Operates under Sub-Standard
Working Conditions
District Council of Painters No. 48
1. The Alta jobsite
The Respondent commenced picketing at all entrances to the Alta
project on December 13, 1964. On the following day, Bill Lockhart,
president of Claremont, placed a sign at the Garretson Street entrance
located approximately 200 feet north of Beatrice Street,4 herein called
the Claremont entrance, reserving the use of that entrance exclusively
to Claremont employees and suppliers. Lockhart also posted a sign at
the Ontario Street entrance to the construction site designating the
said entrance as one for the exclusive use of employees and suppliers
of contractors other than Claremont. For reasons not explained on
the record, a third entrance at the intersection of Garretson and Bea-
trice Streets, herein called the Beatrice Street entrance, remained
unposted. Between December 14 and 22, picketing occurred only at
the Claremont entrance.
According to Respondent witness Dunaway, on December 16 a Clare-
mont employee drove his truck containing painting apparatus on and
off the project several times through the unmarked entrance. Respond-
ent thereupon instructed the pickets, on or about December 22, to patrol
the entire length of Garretson Street adjoining the construction site
and including he unmarked entrance. Because of the extension of
Respondent's picketing, Alta's Superintendent Arndt, on December 22,
posted the Beatrice Street entrance as on reserved for the use of
'Unless otherwise specified , all dates refer to 1964.
' Also referred to on the record as Benedict Road.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and suppliers of contractors other than Claremont. Arndt
conceded that at least on one occasion prior to the posting, the Beatrice
Street entrance had not been used by an employee of Claremont but by
one of Claremont's suppliers. The Respondent continued to picket the
Beatrice Street entrance and, under the belief that Claremont employ-
ees and suppliers were also using the Ontario Street entrance notwith-
standing the posting regulation, it extended its picketing to the
entrance on Ontario Street.
It is not disputed that Respondent's picketing caused the employees
of Tanner and Modern to cease work on the project. The Respondent,
however, claimed that there had been a general disregard of Clare-
mont's posted notices to its employees and suppliers to use the one gate
set aside for them. In support of its claim, Respondent witnesses Dun-
away and Owens testified to six separate instances during January
1965, when Claremont's employees made improper use of such other
entrances.
2. The Kirby project
The record evidence shows that when picketing commenced at the
Kirby project on December 4, 1964, George Kirby, the general con-
tractor, removed Claremont from the project for a few days on advice
of counsel. On December 9, after Claremont returned and picketing
was resumed, separate entrances were established. The entrance on
Fifth Avenue was set aside for use by employees of all contractors
except Claremont. At the opposite side of the tract, an entrance was
designated for Claremont employees on Jellick Street 5 in front of a
large ditch which had been excavated along that entire side of the proj-
ect for underground utility lines. It is undisputed that the aforesaid
excavation was virtually impassable at the site of the Claremont
entrance, and that Claremont employees had to cross the ditch at vari-
ous places between one to three city blocks from the sign, and return to
a point near the sign but behind the picket line in order to enter onto
the project. Consequently, according to Respondent's -witnesses, pick-
eting at the Jellick Street entrance was ineffectual as a means of
appealing to Claremont employees. Respondent, however, confined its
picketing to the Jellick Street entrance between December 9 and 30.
George Kirby conceded that some Claremont employees used the
wrong entrance when the signs were first posted, but that he instructed
them to enter on Jellick Street, and that they observed the proper
entrance thereafter. Respondent's business representative, Beezley,
testified, on the other hand, that picket Don Upp had reported seeing
Claremont employee Barney Osuma on the Kirby project on Decem-
ber 18, but that Osuma had not been seen entering by the Jellick Street
entrance. Beezley further testified that he saw Osuma approaching
s Also referred to in the record as Jellico Street.
ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 445
the site on the morning of December 18 as Beezley was leaving, and
that the pickets, including Don Upp, were stationed at the Claremont
entrance at that time. Beezley also testified that on December 22, fol-
lowing a rainfall on the previous night, he could not find any tire
tracks in the mud along Jellick Street despite the fact that vehicles
driven by Claremont employees had already entered the project that
day. After a. discussion with Respondent's Secretary Cox concerning
the aforementioned infractions by Claremont employees , Beezley
instructed the pickets to patrol the entrance on Fifth Avenue in order
to reach Claremont employees. Kirby testified that as a result of the
Respondent 's picketing some employees of Modern and other contrac-
tors on the job refused to work behind the picket lines. Beezley and
Upp also described other incidents involving Claremont employees'
use of the entrance on Fifth Avenue in January after Respondent had
expanded its picketing to all entrances at the Kirby project.
3. The Roger project
On the morning of December 4, 1964, signs were posted at two of the
four entrances to the tract , designating the main entrance for the use
of employees and suppliers of all contractors except Claremont, and
setting aside the northern entrance for employees and suppliers of
Claremont exclusively . About 8 a.m . on December 4, Respondent's
pickets appeared at the site for the first time and patrolled in front of
all four entrances for approximately 1 hour. During the aforesaid
picketing, according to Roger Construction Manager Carruthers, all
Claremont employees were ordered off the job. On the same afternoon,
Roger sent a letter to Claremont indicating that the picketing had
caused work stoppages on the project and informing Claremont that
its contract would be canceled. Carruthers and Lockhart, president of
Claremont, however, testified that Claremont and its employees
returned to work a day or two later and remained on the project
approximately 2 weeks before Claremont 's contract was terminated.
The painting subcontract was subsequently awarded to Tucker Deco-
rating Company who retained Claremont's employees but substituted
its own foreman on the Roger job.
Respondent's representative, Beezley, testified that at the time he
made the picket assignments on December 4, he was unaware of the
fact that signs had already been posted, that he altered his instructions
to the pickets the same morning upon learning of the reserved
entrances, and that at all times thereafter picketing was confined to the
Claremont entrance.
B. Contentions of the pati ties
On the foregoing record testimony and other evidence , it is the Gen-
eral Counsel's contention that the Respondent picketed the construe-
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion sites with an unlawful object of requiring Alta, Kirby, and Roger
to cease doing business with Claremont. Specifically, it is the General
Counsel's contention that by picketing at entrances other than those
specifically reserved for and restricted to employees and suppliers of
employers other than Claremont, the Respondent clearly indicated that
its picketing was designed to enmesh innocent neutral employers in
Respondent's dispute with Claremont. The General Counsel does not
assert that, apart from Respondent's failure to restrict its picketing to
the entrance set aside for Claremont's employees and suppliers, the
picketing disclosed an unlawful object.
The Respondent, on the other hand, contends that its picketing was
primary in nature. Specifically, the Respondent alleges that Clare-
mont's employees' own disregard of this restriction placed on their use
of entrances other than the one set aside for their own use justified
Respondent's picketing at all entrances, and that such picketing was in
strict conformity with the standards of Moore Dry Docks Insofar as
Respondent's picketing at the Roger project is concerned, the Respond-
ent contends that its picketing could not have had an unlawful object
since it occurred before it knew that separate entrances had been estab-
lished, and that once it obtained knowledge of the separate entrances
its picketing was strictly limited to the entrance established for Clare-
mont's employees and suppliers.
C. Cord sion8
It is evident from all of the foregoing that the evidence adduced at
the court proceeding, and that is part of the record in this case, presents
a sharp conflict in testimony as to whether Respondent's picketing
away from the entrances reserved for Claremont's employees was justi-
fied by other circumstances herein, that factual issues are present
whose determination rests on resolutions of credibility issues, and that
no such resolutions appear, nor were they necessary for the court's
purposes, in the record of proceedings. On the stipulated record
before us, we find, apart from any consideration of the legal adequacies
of the complaint's allegations, that we are unable to resolve these credi-
bility issues and hence can find no sufficient evidence in the record to
support the allegations of the complaint. In these circumstances, we
are constrained to find that the General Counsel has failed to prove the
allegations of the complaint by a preponderance of the evidence.
Accordingly, we shall dismiss the complaint.?
[The Board dismissed the complaint.]
6Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, 549, in
which the Board held that picketing at a common situs is lawful where, inter alga, the
picketing is limited to places reasonably close to the location of the situs.
7 As to the Respondent's picketing of the Roger project on December 4, 1964, we do not
find in Respondent's brief picketing at all entrances before it acquired knowledge of the
establishment of reserved entrances evidence of an unlawful object.