Painters District Council No. 38, Etc.

National Labor Relations Board - Board Decisions

Jun 29, 1965

153 N.L.R.B. 797 (N.L.R.B. 1965)

PAINTERS DISTRICT COUNCIL NO. 38, ETC. 797
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, Room 2023
Federal Office Building, 550 Main Street , Cincinnati, Ohio, Telephone No. 381-2200,
if they have any question concerning this notice or if they have information that its
provisions are being violated.
Painters District Council No . 38, Brotherhood of Painters, Deco-
rators and Paperhangers of America , AFL-CIO and Edgewood
Contracting Company. Case No. 10-CC-564. June 29, 1965
DECISION AND ORDER
On February 8, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
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 and the entire record in this case, including the
exceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that the Respondent, Painters District Council No. 38, Brotherhood
of Painters, Decorators and Paperhangers of America, AFL-CIO, its
officers, agents, and representatives, shall take the action set forth in
the Trial Examiner's Recommended Order.2
1 Under the established policy not to overrule a Trial Examiner's credibility findings
unless a clear preponderance of all the relevant evidence convinces us that they were
incorrect , we find no basis for disturbing the credibility findings made by the Trial Ex-
aminer in this case . Standard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 P. 2d
362 (C.A. 3).
2 The telephone number for Region 10 , appearing at the bottom of the Appendix at-
tached to the Trial Examiner ' s Decision , is amended to read : Telephone No. 526-5741.
153 NLRB No. 70.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard before Trial Examiner Frederick U. Reel in Atlanta, Georgia, on
November 23, 1964,1 pursuant to a charge filed September 2 and a complaint issued
October 9, presents issues as to whether Respondent violated Section 8(b) (4) (i) and
(ii)(B) of the Act by picketing at a construction project under circumstances
detailed below.
Upon the entire record, including my observation of the demeanor of the witnesses,
and after due consideration of the briefs filed by Respondent and by General Counsel,
)( make the following:
FINDINGS OF FACT
1. THE EMPLOYERS AND THE LABOR ORGANIZATION INVOLVED
Edgewood Contracting Company, herein called Edgewood, is an Atlanta general
contractor in the building and construction industry, and at the times material
herein was engaged in construction work at DeKalb County Junior College at
Clarkston, Georgia. The total contract price for the project was approximately
$2 million. During the year preceding the complaint, goods of out-of-State origin
valued in excess of $80,000 were used by Edgewood at the project. Among the
approximately 20 subcontractors on the project was one Grove Decorating Company,
herein called Grove, an Atlanta painting contractor. The parties stipulated that both
Edgewood and Grove were engaged in commerce or in activities affecting commerce
within the meaning of Sections 2(6) and (7) and 8(b) (4) of the Act. The plead-
ings establish that Respondent, herein called the Painters, is a labor organization
within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The hours of the painters at the project
Active painting work on the DeKalb County Junior College project was scheduled
to begin in July 1964. As the painting subcontract had been awarded to Grove,
which did not employ union labor, and as the employees of the other contractors
working at the project were union men, representatives of Edgewood, the general
contractor, and of Grove, the painting subcontractor, anticipated that labor diffi-
culties might ensue. They decided that the Grove painters would do their work at
night and on weekends, at hours when the other craftsmen were not at work. This
procedure was in fact followed; the painters would arrive in the late afternoon after
the other crafts had left for the day, and also worked Saturdays and occasional
Sundays. Each night the painters, after finishing work, would load their equipment
(ladders, drop cloths, rollers, spray hose, etc.) on the truck and drive it back to
Grove's warehouse. They left no equipment at the job other than covering paper
which they affixed with masking tape to protect nonpainted areas from being splat-
tered with paint. They also furnished a can of sealer and a paintbrush to Edgewood
for use by carpenters employed on the project. Except for one weekend when
some sheetrock workers and terrazzo men were working on the project, and two
other occasions described below, no other construction employees were at work
on the project when the painters were there.
One of the occasions on which other craftsmen and painters were simultaneously
at work occurred on an afternoon in late July when some employees of another sub-
contractor, who employed members of the Glazier's Union, were working overtime
for about an hour installing a frame. One of these men, Johnson, testified that he
observed the Grove painters arrive at work and commence putting up the covering
paper and masking tape. He also observed that the next day the walls had been
painted. The other occasion was testified to by another glazier, Steele, who stated
that shortly after 3 p.m. on a mid-August afternoon, when all crafts were working,
he saw two men hanging paper with masking tape.
B. The Painters learn of the Grove workers
Late in July, a few days after Carl Wise had become business representative of
the Painters , he learned from some of the glaziers employed at the project that some
painting was being done there on weekends and that some masking paper had been
put up during the week. Wise went to see Hughes, Edgewood's project super-
i All dates herein refer to 1964, unless otherwise Indicated.
PAINTERS DISTRICT COUNCIL NO . 38, ETC. 799
intendent , and ascertained that the painting was being done by Grove. The testimony
of Hughes and Wise is in sharp conflict as to whether Hughes told Wise of the hours
being worked by Grove's painters ; Hughes claims that he told Wise , but the latter
denies this and testified that had Hughes so advised him, he would have arranged
to picket the job at once . In any event , Wise advised Hughes that Grove did not
employ union labor , a fact of which Hughes was well aware. Wise then called on
Marvin Black , a consultant retained by Edgewood , and (according to Black) asked
for Black's assistance in "getting this situation straightened out between the Painters
and Edgewood Contracting Company." Black further testified that he and Wise
discussed the fact that the painters were not working during the regular working
hours of the other crafts , that Wise was aware of this fact before Black mentioned
it, and that Wise expressed some hope that difficulty could be avoided if the nonunion
men adhered to that schedule . Wise's version of his interview with Black was quite
different . According to Wise, he told Black that the Painters did not have an
agreement with Grove , and he asked Black whether there was "anything [Black]
could do to help [Wise ] on that job ." According to Wise, Black was noncommittal
but offered to talk to Thomas White, the owner of Grove . Wise denied that he was
aware, at the time he talked to Black, of the hours being worked by Grove's men,
and testified that had he been aware of their schedule he would have picketed the
job at once.
Early in August , shortly after his meeting with Black, Wise met White , the owner
of Grove. Wise reminded White that some years before , White had stated he would
"come into the union" if Wise ever became the business agent. According to White,
Wise asked White "to come into the local" and warned him that if he did not sign
a contract with the Painters , Wise would cause the project to be picketed. White
told Wise that the current jobs would have to be finished on a nonunion basis and
then White would consider the matter . A few days later White again chanced
to meet Wise , who, on this occasion ( according to White ), suggested that White
"come on down and sign this contract with us and eliminate all of this trouble that
we are going to have and this picket that's going to be put up." White testified, but
Wise denied , that in the course of these conversations White mentioned to Wise the
"peculiar hours" ( the phrase is White's ) that the Grove painters were working
at the project.
C. The picketing and its aftermath
On Sunday , August 30, Wise for the first time actually observed a nonunion
painter in Grove's employ at work on the premises . Wise promptly commenced
picketing, and arranged for a picket to be present on each succeeding day in the
morning and afternoon . The picket carried a sign reading "Notice to the Public,
Grove Decorating Co. is unfair to District Council No . 38." The picket 's scheduled
hours for the first week were 7:30 a.m. to 4:30 p.m., and thereafter from 7.30 a.m. to
11 a.m., and from 3 p.m. to 6:30 p .m., but he normally stopped picketing at 4 or 5 p.m.
On Monday , August 31, the picketing caused a number of the employees of other
subcontractors to absent themselves from work . On Tuesday , counsel for Edge-
wood telephoned White, the owner of Grove, who was out of town on vacation,
and advised White of the picketing . White telephoned his office and arranged that
his men stop work at the project ; no Grove painters appeared there on Tuesday,
September 1, or there after. On the following day Edgewood filed the charge
initiating this proceeding . On Thursday , September 3, White returned to Atlanta
and telephoned Wise, explaining that the picket had tied up the job and that the
Grove painters and all their equipment were now off the job. According to White,
Wise stated that he knew the job was shut down and "that was the object for the
picket." According to Wise's testimony , when White said , "You've got all the con-
tractors bogged down ," Wise replied that the purpose of the picket sign was to
notify the public . In a pretrial affidavit , Wise stated that when White said the con-
tractors were tied up, Wise replied that that was the purpose of notifying the public
that Grove was unfair.
Picketing continued until on or about September 15 when Edgewood notified the
Painters that Grove 's subcontract was terminated and that Grove had no men or
material on the job. Picketing was thereupon terminated at the project , although
the Painters had displayed the picket sign at their office and in their business agent's
car. Although Grove's painters did no work on the project after September 1, the
covering paper and masking tape which they had affixed remained on the walls
during this period. Also, as is the custom in the construction industry, Grove
painters left on the premises a bucket of sealer and painter's brush for use by
carpenters . On one occasion , after Grove's contract was terminated , a Grove
employee received an order for paint on the project, transmitted it to a local paint
dealer, and eventually delivered the paint to the project . That paint, however, was
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
billed to Edgewood rather than to Grove, and the matter appears to have been'
handled on a quasi-personal basis by White's assistant, Mitchell, who shortly there-
after left Grove to work for the paint dealer.
During the period of the picketing, Grove was engaged in other painting jobs else-
where in the Atlanta area; these jobs were not picketed. Grove's offices are located'
in an office building which houses a miscellany of tenants. One door to Grove's
office leads to a corridor in this building; a second door leads to Grove's warehouse.-
D. Concluding findings
Stripped to its essentials, this case presents the question whether picketing at a.
"common situs" is lawful if the picketing union engages in this activity during sub-
stantial periods in which employees of the primary employer are not scheduled to, and
do not, work at the premises. Stated in other terms, has the picketing here met the
accepted tests of Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92.
NLRB 547, and particularly the test that at the time of the picketing the primary
employer be engaged in its normal business at the situs of the dispute? For reasons
outlined below, I conclude that the picketing did not meet that test.
Briefly summarized, the picketing occurred 7 days a week between the hours of'
7:30 a in. and 4 or 5 p.m. The primary employees were scheduled to work during
the day Saturdays and Sundays, but only after 4:30 p.m. of the other days of the
week. I find, crediting the testimony of Black in this respect, that the Painters were
aware at the time picketing commenced of the hours the Grove employees were
scheduled to work. The record leaves no room for doubt that an object of the picket-
ing was to force Grove off the project unless it employed union painters or recognized
and bargained with the Painters. Under settled law, however, the picketing may
nevertheless be characterized as "primary" and lawful, rather than "secondary" and
unlawful, if its secondary aspects are purely incidental consequences of a lawful'
appeal to employees of the primary employer or to the general public. The Moore
Dry Dock tests have been devised as a means of ascertaining the underlying question
as to the fundamental objective of the picketing. As the Board has well stated in its .
landmark opinion in International Brotherhood of Electrical Workers, Local Union
861, and Armth Lard, its agent (Plauche Electric, Inc.), 135 NLRB 250, 255, the
Moore Dry Dock standards "are not to be applied on an indiscriminate `per se' basis„
but are to be regarded merely as aids in determining the underlying question of
statutory violation."
The picketing in this case on 5 of the 7 days of the week cannot be said to have had'
as its object reaching the employees of the primary employer. These employees were
not scheduled to be at the picketed premises at any time the picketing was in progress,
except possibly for the last half hour of picketing each day. Picketing directed at
such employees would have occurred during the late afternoon and evening hours of
those days. The Painters' insistence on picketing during the work hours of other
crafts warrants an inference that their objective in picketing at those hours was to,
reach the employees of other contractors on the project.
Although no Board decision squarely covers these facts, considerations expressed
in the cases seem to support the result I have reached. For example, in Sheet Metal
Workers' International Association, Local Union No. 3, AFL-CIO (Siebler Heating &
Air Conditioning, Inc.), 133 NLRB 650, the Board found a violation of Section 8(b)
(4) (i) and (ii) (B), relying "solely on the fact that picketing occurred at the .. .
construction sites at times when no employees of Siebler, the primary employer, were-
present." In International Brotherhood of Electrical Workers, Local 861, AFL-CIO
(Cleveland Construction Corp.), 134 NLRB 586, 589, the Board found a violation,
because the union there "picketed the bank building job on 8 days, during the whole
working day, at times when no Elco employees were at work on the project." In,
Plumbers Local Union No 519, United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO'
(Babcock Company), 137 NLRB 596, the Board held unlawful picketing which took
place at construction projects on Sundays when no employees of the primary employer-
but "only salesman and prospective buyers were present" In Local 373, Interna--
tional Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO,
et al. (Marshall Maintenance Corp ), 146 NLRB 1058, the picketing was held lawful
when it was basically confined to the shift on which employees of the primary-
employer worked, even though it started 1 hour before the actual starting time of that
particular group of employees and the picketing organizations were unaware of the
reporting time of that group. In Plumbers Local Union No. 307 (Meyers Plumbing),
146 NLRB 888, the Board dismissed for failure of proof an alleged violation of Sec-
PAINTERS DISTRICT COUNCIL NO. 38, ETC. 801
tion 8(b)(4)(i) and (ii)(B), observing that "More than a mere showing that the
primary employer's employees were absent on a specified number of days is required,"
and particularly noting that "prior to the commencement of each day's picketing,
Respondent had no knowledge as to whether Meyers' employees were scheduled to be
present at the jobsite, or if scheduled to work, would arrive late or would work an
entire day or a portion thereof." In Local 3, International Brotherhood of Electrical
Workers, AFL-CIO (New Power Wire and Electric Corp. and P & L Services, Inc.),
144 NLRB 1089, 1093, 1094, enfg. in part 340 F. 2d 71 (C.A. 2), the Board, in hold-
ing the picketing valid, observed that "the absence of the primary employer's employ-
ees is merely one of the factors to be evaluated in determining" the legality of the
picketing, but it relied on the fact that the absence of primary employees was in large
measure attributable to the picketing, and also on the fact that work by primary
employees resumed intermittently during the period of the picketing. In International
Brotherhood of Electrical Workers, Local 861, AFL-CIO (Brownfield Electric, Inc.),
145 NLRB 1163, the Board, in upholding the picketing, observed that the mere
absence of primary employees is not conclusive, and the legality of picketing in such
cases "depends in significant part on the reasons for this absence." In Brownfield the
Board found that the absences may have been the result of the picketing, and further
noted that the absences were temporary and intermittent, and that the primary
employer continued to store materials and tools at the project, and had not completed
its work on the project.
In the instant case, the scheduled absence of the employees during normal working
hours was caused by the picketing, or more accurately by anticipation of picketing.
The case is unique in that the picketing union was aware at the time of picketing that
the employees of the primary employer were at work, or were scheduled to work, at
regularly scheduled hours other than those during which the picketing took place.
This in my judgment serves to distinguish Brownfield and the other cases relied on by
the Painters.
The presence of the covering paper, masking tape, sealer, and brush add nothing
to the case. Even if it could be shown that these articles remained the property of
Grove (an assumption not warranted by the record), they do not of themselves fur-
nish justification for what would otherwise be unlawful picketing. At most they
would show that Grove's contract was not yet completed at the time of the picketing,
a fact freely conceded. Conversely, General Counsel failed to establish that if the
picketing were otherwise lawful, it was rendered invalid by the fact that Grove had an
office elsewhere which could have been picketed. The record is silent as to the fre-
quency with which employees went to that office.
CONCLUSIONS OF LAW
By inducing and encouraging employees of subcontractors engaged in work on the
DeKalb County Junior College construction project to engage in a strike or a con-
certed refusal in the course of their employment to perform services, and by threaten-
ing and coercing representatives of Edgewood Contracting Company, in each case
with an object of forcing or requiring Edgewood Contracting Company to cease
doing business with Grove Decorating Company or of forcing Grove to recognize the
Painters as the collective-bargaining representative of its employees, the Painters have
engaged in unfair labor practices affecting commerce within the meaning of Sections
8(b) (4) (i) and (ii) (B) and 2(6) and (7) of the Act.
III. THE REMEDY
Having found that the Painters have violated Section 8(b)(4)(i) and (ii)(B) of
the Act, I shall recommend that it cease and desist therefrom, and take certain affirma-
tive action necessary to effectuate the policies of the Act.
RECOMMENDED ORDER
Accordingly, upon the foregoing findings of fact and conclusions of law, and on
the entire record in this case , and pursuant to Section 10(c) of the National Labor
Relations Act, as amended , it is hereby ordered that Respondent , Painters District
Council No. 38, Brotherhood of Painters , Decorators and Paperhangers of America,
AFL-CIO, its officers , agents, and representatives , shall
1. Cease and desist from inducing or encouraging any individual employed at the
DeKalb County Junior College construction site (except employees of Grove
796-02 7-66-v of 153-52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decorator Company ) to engage in a strike or a refusal in the course of his employ-
ment to use, manufacture , process, transport , or otherwise handle or work on any
articles, materials, or commodities , or to perform any services ; or threatening , coerc-
ing, or restraining Edgewood Contracting Company or any other contractor or sub-
contractor (other than Grove Decorating Company ) engaged at the aforesaid build-
ing site, where in either case an object thereof is either to force or require Edgewood
Contracting Company to cease doing business with Grove Decorating Company or
to force or require Grove Decorating Company to recognize the Respondent as the
collective-bargaining representative of Grove employees.
2. Take the following affirmative action designed to effectuate the policies of the
Act.
(a) Post in the Respondent 's business offices and meeting halls copies of the
attached notice marked "Appendix ." 2 Copies of said notice, to be furnished by the
Regional Director for Region 10, shall, after being duly signed by an authorized repre-
sentative of the Respondent , be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered , defaced, or covered by any other material. Upon request of
the Regional Director , the Respondent shall supply him with a sufficient number of
signed copies for posting by Grove Decorating Company and Edgewood Contracting
Company, if they desire to do so , at the site which was involved in this proceeding.
(b) Notify the said Regional Director , in writing , within 20 days from the date of
the receipt of this Decision and Recommended Order, what steps the Respondent has
taken to comply herewith.3
2 In the event this Recommended Order be adopted by the Board , the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial Ex-
aminer" in the notice . In the further event the Board 's Order be enforced by a decree
of a United States Court of Appeals , the words "a Decree of the United States Court of
Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order."
In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify the said Regional Director , in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF PAINTERS DISTRICT COUNCIL No . 38, BROTHERHOOD OF
PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA , AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify you that:
WE WILL NOT induce or encourage any individual employed at the DeKalb
County Junior College construction site ( except employees of Grove Decorating
Company ) to engage in a strike or a refusal in the course of his employment to
perform work or render services, and WE WILL NOT threaten , coerce, or restrain
Edgewood Contracting Company or any other contractor or subcontractor (other
than Grove Decorating Company ) engaging in operations at that construction
site, where in either case an object thereof is to force or require Edgewood Con-
tracting Company to cease doing business with Grove Decorating Company or
to force or require Grove to recognize or bargain with Painters District Council
No. 38 as the representative of Grove's employees.
PAINTERS DISTRICT COUNCIL No . 38, BROTHERHOOD OF PAINTERS,
DECORATORS AND PAPERHANGERS OF AMERICA , 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, 528
Peachtree -Seventh Building, 50 Seventh Street , NE., Atlanta , Georgia, Telephone No.
876-3311, Extension 5357, if they have any question concerning this notice or com-
pliance with its provisions.