Painters Local 272

National Labor Relations Board - Board Decisions

Sep 22, 1967

167 N.L.R.B. 511 (N.L.R.B. 1967)

PAINTERS LOCAL 272 511
Painters Local 272, Brotherhood of Painters , Decora-
tors and Paperhangers of America, AFL-CIO;
Operating Engineers Local 3, International Union
of Operating Engineers , AFL-CIO; Hod Carriers'
and Laborers ' Local 690, International Hod Car-
riers', Building and Common Laborers ' Union of
America , AFL-CIO; Carpenters Local 1323,
United Brotherhood of Carpenters and Joiners of
America , AFL-CIO and Howard H . Whitney.
Case 20-CC-659
September 22, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 14, 1967, Trial Examiner David F.
Doyle, issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondents Painters, Laborers,
and Carpenters filed exceptions to the Trial Ex-
aminer's Decision and briefs in support thereof, and
the General Counsel filed an answering brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
Howard H. Whitney is a general contractor en-
gaged in constructing homes for Ted Shuler, a land
developer, at Marina Beach Tract housing develop-
ment. Whitney has had collective-bargaining con-
tracts since February 12, 1965, with Peninsula
Craftsmen and Workers Association.
In July 1966, Paul Richards, the Carpenters'
business agent, asked Whitney if he could speak to
his men about joining the Carpenters. Whitney said
he had no objection, and when asked by Richards
whether he would sign a contract if the men joined
the Carpenters, Whitney replied that he would, but
that "it would be left strictly up to the men."
About December 1, 1966, the Carpenters began
picketing the entrance to the Marina Beach project
with signs reading, "Howard H. Whitney Unfair,
Refuses to hire AFL-CIO Carpenters, Unfair
Labor Practice, Carpenters Local 1323,
AFL-CIO." The picketing continued until January
7, 1967. During the period of the picketing, Whit-
ney had five of his own employees, who were car-
penters, employed at the site. Also working at the
site were employees of Marina Plumbing & Hard-
ware Inc., herein called Marina Plumbing; Ross
Roofing, Lovell Austin Sheetrock Company, and A
& A Electric.
On December 7, 1966, agents of the four
Respondent Unions were present at the Marina
Beach Tract. Three employees of Marina Plumb-
ing, two of whom were members of the Engineers
and the third a member of the Laborers, saw the
union agents, left their work, went off the site, and
asked Harley Davidson, business agent of the En-
gineers, to tell them what they should do. Davidson
replied that he could not tell them what they should
do, but that "every engineer knows what to do
about a picket line," and referred them to the
Union's bylaws. Davidson also said, "It's a crafts-
men's picket and we all have to stick together on
this thing," or words to that effect.
The three employees then told their "boss,"
Harry Smith, that they would rather not return to
work that day and left the site. All three employees
returned to work the following day and continued
to work despite the picketing. A day or two later,
Davidson appeared at the jobsite, looked at the
union cards of some of Marina Plumbing's em-
ployees, and made some notes on a pad.
We find, in agreement with the Trial Examiner,
that the Carpenters had a labor dispute with Whit-
ney, in support of which it established a lawful
picket line at the entrance to the site where Whit-
ney's employees were working, with signs clearly
identifying Whitney as the person with whom its
dispute existed.2
We also find, in agreement with the Trial Ex-
aminer, that Respondent Engineers, by the conduct
of its agent Davidson described above, in support
of the Carpenters' dispute with Whitney, induced
and encouraged individuals employed by Marina
Plumbing, a neutral employer, to refuse to perform
services, and thereby also coerced and restrained
Marina Plumbing, all with an object of forcing
Marina Plumbing to cease doing business with
Whitney, in violation of Section 8(b)(4)(i) and (ii)(B)
of the Act.
We do not agree with the Trial Examiner, how-
ever, that any other violations were committed.
Thus, except as specifically found above, there is
no evidence that the Engineers, or any of the other
Respondent Unions requested any other employees
of subcontractors to stop working or otherwise
sought to exert secondary pressure on Whitney in
' Respondent Engineers did not file exceptions to the Trial Examiner's
Decision.
2 Moore DryDock Company, 92 NLRB 547, 549.
167 NLRB No. 68
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support of the Carpenters' dispute with him. The
complaint did not allege any joint or concerted ac-
tion by the Respondents. And there is no evidence
of any agreement or understanding among them, or
even that their agents arrived at the site together, or
overheard Davidson's conversation with the three
Marina Plumbing employees on the occasion in
question. The mere presence of the business agents
at or near the jobsite does not, standing alone,
establish mutual agency of all Respondent Unions.
Nor are we prepared to say in the circumstances of
this case that the Painters, Laborers, and Carpen-
ters were under an obligation to disavow the state-
ments made by the business agent of the Engi-
neers.3
Accordingly, we find, contrary to the Trial Ex-
aminer, that a preponderance of the evidence fails
to establish that Respondent Engineers violated the
Act in any manner other than as found above, or
that the Respondent Painters, Laborers, and Car-
penters violated Section 8(b)(4)(i) or (ii)(B) of the
Act in any manner.
signed copies for posting by Marina Plumbing &
Hardware Inc., if it be willing, at its place of busi-
ness, including all places where notices to its em-
ployees customarily are posted.
(c) Notify the Regional Director for Region 20,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint
herein be, and it hereby is, dismissed insofar as it al-
leges unfair labor practices not found herein.
3 Building and Construction Trades Council of Tampa and Vicinity
(Tampa Sand and Material Company), 132 NLRB 1564.
" 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 "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
APPENDIX
NOTICE TO ALL OUR MEMBERS , OFFICERS AND
AGENTS, AND TO MARINA PLUMBING AND
HARDWARE INC., AND ITS EMPLOYEES
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Operating Engineers Local 3, International
Union of Operating Engineers, AFL-CIO, its of-
ficers, agents , and representatives, shall:
1. Cease and desist from:
(a) Inducing or encouraging employees of
Marina Plumbing & Hardware Inc. to engage in a
strike or refusal in the course of their employment
to perform services with an object of forcing or
requiring the above-named company to cease doing
business with Howard H. Whitney.
(b) Threatening, coercing, or restraining Marina
Plumbing & Hardware Inc. with an object of forc-
ing it to cease doing business with Howard H. Whit-
ney.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act:
(a) Post at its offices and meeting halls including
all places where notices to its members customarily
are posted, copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 20, after
being duly signed by an authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(b) Promptly, after receipt of copies of the said
notice from the Regional Director, return to him
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 notify you that:
WE WILL NOT induce or encourage em-
ployees of Marina Plumbing and Hardware
Inc. to refuse in the course of their employment
to perform any service with an object of forcing
or requiring Marina Plumbing and Hardware
Inc. to cease doing business with Howard H.
Whitney.
WE WILL NOT threaten, coerce, or restrain
said Marina Plumbing and Hardware Inc. with
an object of forcing or requiring it to cease
doing business with Howard H. Whitney.
OPERATING ENGINEERS
LOCAL 3, INTERNA-
TIONAL UNION OF
OPERATING ENGINEERS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If anyone has any question concerning this notice
or compliance with its provisions, he may commu-
nicate directly with the Board's Regional Office,
13050 Federal Building, 450 Golden Gate Avenue,
Box 36047, San Francisco, California 94102,
Telephone 556-3197.
PAINTERS LOCAL 272
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID F. DOYLE, Trial Examiner: This proceeding,
brought under Section 10(b) of the Act, was heard at
Monterey, California, on March 21, 1967, pursuant to
due notice to all parties.'
This proceeding was initiated by the filing of a Charge
Against Labor Organization or Its Agents with the Re-
gional Office (San Francisco, California) by Whitney on
December 8, 1966. An amended charge was also filed by
Whitney on December 15, 1966, and a second amended
charge on January 30, 1967. The complaint herein was is-
sued by the Regional Director, Region 20, on February
8, 1967.
The complaint alleged in substance that the Respond-
ent Unions had violated Section 8(b)(4)(i) and (ii)(B) and
Section 2(6) and (7) of the Act, by certain conduct which
will be more specifically described hereinafter. The
Respondent Unions duly filed answers denying all
charges of unfair labor practices and at the hearing, took
the position, in substance, that the General Counsel had
failed to establish by a preponderance of the evidence
that each or any of the Respondents had committed the
unfair labor practices alleged in the complaint. The
answer and the contentions of the Respondent Unions
will also be set forth more at length hereinafter.
At the hearing all parties were represented, were af-
forded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence bearing on the
issues, to argue the issues orally upon the record, and to
file briefs and proposed findings. The General Counsel,
the Carpenters, and Painters have all filed briefs which
have been carefully considered.
Upon the entire record and my observation of the wit-
nesses, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANIES
Upon the pleadings, the stipulations of the parties, and
all the evidence herein, thee various business operations
of the various companies are found to be as follows:
(a) Howard H. Whitney, the Charging Party, is an in-
dividual and the sole proprietor of a general contracting
business in the vicinity of Marina, California. Since on or
about November 28, 1966, Whitney has been engaged, as
a general contractor in the construction of homes in
Marina, California, at a construction site known as the
Marina Beach Tract.
(b) The Marina Beach Tract is being constructed by
Whitney, as general contractor for Ted Shuler, herein
called Shuler, an individual who engages in the business
of land development.
(c) In connection with the construction of the Marina
'in this Decision Painters Local 272, Brotherhood of Painters,
Decorators and Paperhangers of Amenca, AFL-CIO, is referred to as the
Painters or Respondent , Operating Engineers Local 3, International
Union of Operating Engineers , AFL-CIO, as the Engineers or Respond-
ent Engineers , Hod Carriers' and Laborers' Local 690, International Hod
Carriers', Building andCommon Laborers' Union of America, AFL-CIO,
as the Laborers or Respondent Laborers, Carpenters Local 1323, United
Brotherhood of Carpenters and Joiners of Amenca, AFL-CIO, as the
Carpenters or Respondent Carpenters; and the Respondents collectively
as the Respondents or Respondent Unions; Howard H. Whitney, as Whit-
513
Beach Tract, Whitney subcontracted certain work of
various other employers, including, among others,
Marina Plumbing, A & A Electric, Lovell Austin
Sheetrock Ross Roofing, Dooley-Bruno Stucco, Surf Tile
Co , and Rainey Flooring Co.
(d) At the hearing counsel for the parties stipulated
into evidence a document, which is a compilation of the
business records of H & H Lumber Company, which dis-
closes the amount of materials sold to Shuler for use on
the Marina Beach project, which is the tract involved in
this proceeding. This document establishes that H & H
Lumber Company supplied material from outside of
California to Shuler in the amount of $31,657 52 and
material from intrastate sources in the amount of
$70,526.02.
Upon the above facts I find that the annual indirect in-
flow to the jobsite concerned exceeded $50,000 on an an-
nual basis. I also find on the basis of Shuler's uncon-
tradicted testimony that Shuler's operations at the jobsite
meet the Board's retail standards, in that annual sales will
exceed $500,000 and there is substantial flow of goods
from outside the State of California.2
The Board has held that in secondary boycott situa-
tions the operations of the primary employer (Whitney)
may be considered in determining whether the Board's ju-
risdictional standards are met, as well as the combined
operations of the primary employer and the business of
any secondary employers if the site is affected by the
picketing.3
Therefore it is found that Whitney, Shuler, Marina
Plumbing, A & A Electric, Lovell Austin Sheetrock,
Ross Roofing, Dooley-Bruno Stucco, Surf Tile Co., and
Rainey Flooring Co. are employers engaged in commerce
or in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act, and the Board has ju-
risdiction over Shuler and the dispute involved in this
case.
II. THE LABOR ORGANIZATIONS INVOLVED
The pleadings establish and it is found that the Re-
spondent Unions are labor organizations within the
meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that since December 1, 1966,
the Carpenters, acting by certain of its representatives,
has established and maintained a picket line at a housing
development known as Marina Beach Tract, and thereby,
(1) induced or encouraged individuals employed by
Marina Plumbing, A & A Electric, Lovell Austin
Sheetrock, Ross Roofing, Dooley-Bruno Stucco, Surf
Tile Co., and Rainey Flooring Co. to engage in a strike or
refusal in the course of their employment to perform ser-
ney or the Charging Party, the National Labor Relations Board, as the
Board, the General Counsel of the Board and his representatives at the
hearing, as the General Counsel, and the Labor Management Relations
Act, as amended, as the Act
2 Hygienic Sanitation Company, 118 NLRB 1030, American Televi-
sion, Inc of Missouri, i I 1 NLRB 164, Essex County, Carpenters Coun-
cil (Fairmount Construction Co ), 95 N LRB 969.
3 Commission House Drivers (Euclid Foods), 118 NLRB 130,
McAllister Transfer, Inc, 110 NLRB 1769
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vices for their employers at the Marina Beach Tract; and
(2) threatened, coerced, or restrained the specific compa-
nies and Ted Shuler, the land developer, who was
developing the Marina Beach Tract to cease doing busi-
ness with Whitney.
The complaint also alleges that Davidson and Bullard,
the Engineers' business agents; Richards, the Carpenters'
business agent, Holt, the Laborers' business agent, and
Jewert, the Painters' l$hsiness agent, told individuals em-
ployed by Marina Plumbing to stop work and thereby: (1)
induced or encouraged individuals employed by Marina
Plumbing to engage in a strike or refusal in the course of
their employment to perform services for their employer
at the Marina Beach Tract; and (2) threatened, coerced,
or restrained Manna Plumbing, and that the object of all
the conduct alleged was the forcing or requiring Marina
Plumbing, Shuler, A & A Electric, Lovell Austin
Sheetrock, Ross Roofing, Dooley-Bruno Stucco, Surf
Tile Co., and Rainey Flooring Co. to cease doing busi-
ness with Whitney and that the aforesaid conduct violates
Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of
the Act.
The Respondents filed timely answers which denied
the commission of any unfair labor practices and at the
hearing, which resulted in a largely stipulated record, the
Respondents each took the position that the General
Counsel's evidence was insufficient to establish the com-
mission of any unfair labor practice by any Respondent,
and each Respondent moved for the dismissal of the com-
plaint.
B. The Evidence
The hearing herein was brief, being comprised mostly
of certain stipulations of counsel that shortened the taking
of oral testimony and the testimony of Howard Whitney,
the general contractor and Charging Party herein, and
Ted Shuler, the land developer. The testimony and ap-
propriate stipulations will be set forth in chronological
order so the reader may view the controversy as it
developed.
Whitney testified further that he also had an agreement
by which Shuler was to pay him 25 percent of all contract
labor in addition to the finished labor as far as "framing"
was concerned. Whitney explained that under his con-
tract the arrangement he had with Shuler was that he
asked for bids from subcontractors, and chose the bidders
he desired After that he saw that the subcontractors
work was done in a satisfactory manner and as it was
completed he certified their bills for payment by Shuler.
He said that he supervised the whole operation, and
Shuler paid the bills as he certified them. Shuler from time
to time settled with him. Whitney said he supplied no
materials to the job, only some labor and supervision of
the project. Whitney said he personally had no arrange-
ment for electrical or plumbing work, or the excavating or
grading of the sites for the buildings.
Ted Shuler, called as a witness by the General Coun-
sel, stated that he is a developer and builder of homes. He
does not build the homes himself but hires contractors to
build the homes for him. In the last few years he has used
contractors named Herman Cox, Ed Lundblad, Everett
Whitney, and Howard Whitney. He started to employ
Howard Whitney in August 1966 and had him build
homes in Marina Pines, Oakhills No. 1, Marina Beach,
and several single houses not in a subdivision. The homes
in the Marina Beach area averaged between $22,000 and
$26,000 in price. When the Marina Beach Project is
completed he will have built 52 homes at the project.
Shuler testified that he borrows money from the banks
to finance a great deal of his operations and he is most
anxious to see that the general contractors keep their
commitments as to time because of interest on these
loans. Shuler said he expects to sell well over a million
dollars worth of homes between November 1966-67. He
said that he hired Whitney as the general contractor and
Whitney gets the bids from the subcontractors and okays
them, and he also okays the necessary lists of lumber and
other materials. Shuler's bookkeeper makes out the
checks to the contractors concerned. Shuler has nothing
to do with the contractors except to pay their bills as sub-
mitted. Day-by-day supervision of the performance of the
subcontractors is up to Whitney.
C. The Shuler- Whitney Relationship
Howard H. Whitney , called as a witness by the
General Counsel , testified that he is in the business of
general contracting and at the present time is engaged in
the construction of single-family residences for Ted
Shuler . He identified his contract with Shuler in regard to
the building of homes at Marina Beach Tract . This docu-
ment reads as follows:
Agreement
This agreement is to put in writing our standing
agreement entered into approximately August 18,
1966. Howard H. Whitney to build homes for Ted
Shuler at a contract bid price for framing labor.
Labor for finishing shall be at cost plus $125.00 per
house.
This agreement can be terminated by either party
upon thirty (30) days written notice.
/s/ Teddy Shuler
Teddy Shuler
/s/ Howard H. Whitney
Howard H. Whitney
D. The Beginning of the Controversy
In the course of his testimony Whitney said that he had
been engaged in this work for Shuler since the middle of
August 1966 and that he had labor contracts with the
Peninsula Craftsmen and Workers Association. At that
point after a discussion by all counsel, counsel for the
General Counsel stated, "I make no contention of any
violation of Section 8(b)(4)(D) of the Act or any jurisdic-
tional ... [dispute]." Whitney said that he first signed a
contract with the Peninsula Craftsmen and Workers As-
sociation on February 12, 1965, and the last one that he
signed was around the last of July 1966.
E. The Carpenters Activity
Whitney testified to the beginning of this controversy.
He said that in July 1966, Paul Richards, business agent
of the Carpenters, approached him at the jobsite at
Marina Pines subdivision and asked Whitney if he could
speak to the men on the job about getting them to join the
Carpenters. Richards said that he was "not going to go
behind Whitney's back or anything." Whitney told
Richards that he had no objection. Richards asked Whit-
PAINTERS LOCAL 272 515
ney, if the men agreed to join the AFL, would Whitney
sign a contract with that organization. Whitney answered
in the affirmative, but added that "it would be left strictly
up to the men." After that Whitney was informed that
Richards had talked to the men'and that later the men had
attended a meeting at Richardsl' home. Whitney said he
heard no more from Richards until picketing commenced
at the Marina Beach Tract.
F. The Picketing
It was stipulated by all counsel at the hearing that on or
about December 1, 1966, that Respondent Carpenters
began picketing the Marina Beach Project with signs
reading, "Howard H. Whitney Unfair, Refuses to hire
AFL-CIO Carpenters, Unfair Labor Practice , Carpen-
ters Local 1323, AFL-CIO." It was further stipulated
that picketing with these signs continued at Marina Beach
Project until January 7, 1967.
It was also stipulated by counsel that during and
preceding the period of picketing mentioned herein,
picketing also took place at another physical location,
where homes built by Whitney were being offered for sale
by Shuler and that the signs at this project read , "To con-
sumers only; please do not purchase or rent these units.
Built under substandard wages and conditions. Carpen-
ters Local 1323."
Whitney testified that during the period of the picketing
at Marina Beach Project he had subcontractors working
on the job ; they were Marina Plumbing and Hardware,
Ross Roofing , Lovell Austin Sheetrock Company, and A
& A Electric . During this period the subcontractors had
their employees working on the jobsite . When the picket-
ing began Whitney had five carpenters , his own em-
ployees on the jobsite.
G. The Advent of the Business Agents
It is undisputed that the Carpenters' picket was at the
Marina Beach Tract as related above on December 7,
1966, when a group of business agents, representing the
Respondent Unions, came to the tract and had conversa-
tions with some of the men variously employed on the
tract. All counsel stipulated that the affidavits of the three
employees involved could be received in evidence and
considered on the merits of the case in lieu of oral
testimony. Since the affidavits are relatively short they
are set forth verbatum, except that the venue, address in-
formation, and jurat of each are omitted. All were
properly executed before Edward E. McDaniel, Board
agent.
AFFIDAVIT OF PAUL PECORARO
Since about May 1963 I have been continuously
employed by Marina Plumbing & Hardware Inc.,
Marina California. Harry Smith is the owner. I am a
member of Operating Engineers Union Local #3. I
have been a member of this union since about
December 1965. My employer has a labor agreement
with my union Local #3.
On December 7, 1966 my employer sent me and
four other employees to work on the Marina Beach
subdivision project (housing development) of Ted
Shuler and his general contractor Howard Whitney.
When we arrived we saw a man parked near the main
entrance to the tract. The five of us arrived in a com-
pany truck and in the car. of employee Penny
Northcut. We entered the site along the southwest
side through the field about 100 yards from the en-
trance. We were to work on a sewer line and not on
the houses themselves. My employer was putting in
the sewer for Calabreese Construction company--
who had a contract with Monterey Savings & Loan
Co., a developer.
At about 10:00 a.m. we looked up and saw several
Union representatives out off the street, Lake Drive,
standing with field glasses looking onto the project
site. We decided to go off the site and talk with these
union agents. We recognized Harley Davidson busi-
ness agent of Local #3 as one of the men there.
When we got up to the road we found Ken Holt of
Laborers Union Local 690, Paul Richards of Car-
penters Local 1323, Jack Bullard of the Engineers
Local #3 and another gentleman with Davidson. I
shook hands with them when we got there. Jack Bul-
lard passed out his card to the other employees there.
We asked Mr. Davidson to tell us what to do. A
picket was there at this time with a sign. I do not re-
call what the sign said at this time.
Davidson told us that he could not tell us what to
do but that our by-laws tell us what to do about a
sanctioned picket line. He said "I can't tell you what
to do or how to do it. I can't tell you to go across the
picket line or not to, but every Engineer knows what
to do on a picket line," or words to that effect.
Davidson was the only business agent talking.
Penny Northcut asked Harley about our working
on a different job for Monterey Savings & Loan and
the fact that the picket was on Howard Whitney's
homes construction on four lots. Davidson looked at
Richards and asked "How about this?" Richards &
Davidson turned away and mumbled something.
Richards said nothing to me and I did not overhear
what was said between Richards and Davidson.
Davidson then looked to us and said something to
the effect "its a craftsmen's picket and we all have to
stick together on this thing."
We all (the employees) then left and returned to
our shop. Mr. Smith our employer was there. He told
us to go back to the tract and said that he would be
right over. We went back. When Mr. Smith got there
he had a conference with all the union representa-
tives. He then came over to where we were and told
us to all go back to work. We told Smith we'd rather
take the rest of the day off until this thing was settled.
(we were all mixed up, we didn't want to get in trou-
ble with the Union and neither did we want to get in
trouble with our boss. Mr. Smith told Harley that we
were going to group our equipment for about an hour
and then leave the site. Mr. Davidson then said al-
right. We knocked off and went home about 11:30
a. m.
We came back to the shop the next day and we
were told by Mr. Smith to go back to work because
it was an illegal picket. We all went back to work. We
crossed onto the site at the Southwest corner of the
tract each day-away from where the picket was.
I have not talked to any union agent since. There
has been no picket on the Marina job in the last two
days.
I have read the above statement and I certify that
the facts given are true and accurate to the best of my
knowledge and belief.
/s/ Paul M. Pecoraro
310-541 0 - 70 - 34
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFFIDAVIT OF ERNEST NORTHCUT
I am employed by Marina Plumbing & Hardware
Inc., Marina, California. I am a member of Operating
Engineer Union Local #3. I have been a member of
Local #3 about 10 years. My employer has a labor
agreement with Operating Engineers Union Local
#3.
On December 7; 1966 my employer sent about
five of us employees to the Marina Beach project site
(a subdivision development of Ted Shuler under con-
struction) to put in sewers under a contract my em-
ployer has with the developers. We were not working
on Shuler's houses but on the streets going into the
subdivision and the streets of the subdivision. We ar-
rived at the site and got started about 8 a.m. We en-
tered from the southwest corner of the site. There
was a picket at the north end of the tract at the en-
trance to it.
At about 10:00 a.m. we noticed a group of men in
or near the cars of Harley Davidson of Local 3 and
of Paul Richards of Carpenters Union Local 1323.
1 told the fellows "well I see some business agents on
the road, I go down and talk to them." We all went
down.
When we got to where they were standing I saw
Harley Davidson, Paul Richards, Ken Holt of
Laborers Union Local 690, and two others. I told
Davidson that we were not working for Whitney
(contractor Howard Whitney's name was on the
picket sign being carried by a Carpenters Union
Local 1323 picket) but for a contractor under Mon-
terey Savings & Loan, one of the developers. David-
son was asked by employee Paul Pecararo [sic]
what we should do. Davidson said he couldn't tell us
either to work or not to work. He referred us to our
union book. He said "each member should know
what his by-laws say" or something like that.
When I told Davidson that we were not working
for Whitney I believe Davidson asked Richards
about it. I don't recall that Richards said anything.
After we had talked with the business agents we
decided to leave the site . We left and returned to the
shop. Our boss Harry Smith told us to go back out to
the site , saying he would come out too. We all went
back. Harry spoke with the business agents. He then
came over to us telling us to go back to work. I told
Harry I'd rather not go back that day . (all the men
said that.) Harry told us that he had told the business
agent that if there wasn 't a picket on our (sewer) job
we were going back to work that next day. We left
the site then. The following day we returned. The
picket was still there.
The second day or so after the incident with the
business agents I was working on the Marina Beach
project with two or three other employees of Marina
Plumbing when Local # 3 business agent Harley
Davidson came onto the site. He asked me for my
union card . I handed it to him and he took my name,
social security number , and card number I think. I
did not see exactly what all he copied down. He
asked what other Marina Plumbing employees were
working that day and where. I told him this. David-
son did not say why he wanted this information.
That was the last I saw of Harley Davidson or any
of the Union representatives.
I have read the above statement and I certify that
the facts given are true and accurate to the best of my
knowledge and belief.
/s/ Ernest R. Northcut
AFFIDAVIT OF JOHN H. WHITNEY
Since about October (early October) I have been
continuously employed by Manna Plumbing &
Hardware Inc., Marina California, as a laborer. 1 am
a member of Laborers Union Local 690 out of Mon-
terey , California . My union business agent is Ken
Holt. My employer has a labor agreement with my
local, I understand. I was sent to my employer Harry
Smith through the Local's hiring hall,
I was with Marina employees Paul Pecarora [sic],
Ernest Northcut, Gary Portlock & Larry DeLeon
working on the Marina Beach development construc-
tion site when five union business agents arrived, in-
cluding Ken Holt, Harley Davidson of Operating
Engineers and Paul Richards of the Carpenters
Union.
We first saw these union agents as they were on
the road in front of the site. One of them had field
glasses looking onto the site . We saw a picket at the
entrance carrying a sign naming Howard H. Whitney
as being unfair to Carpenters Union Local 1323.
We decided to go up on the road and talk to the
business agents to find out what we should do. I
stood there as the others talked. Harley Davidson
did most of the talking . He said "I can 't tell you to
work and I can't tell you not to work," but he left us
with the impression that we should not continue to
work behind the picket line. Harley was told by one
of the employees that we were working on the sewers
and not on Whitney's houses under construction. I
heard Davidson say, "its a craftsmen 's picket and we
are all in this thing together," or words to that effect.
My business agent Ken Holt was there but he said
nothing.
We decided to leave the project then . We went
back to the shop. When we got their [sic] boss Harry
Smith told us to return to the site and that he would
come out himself. We did go back . Harry came out
and he spoke with the business agents alone . He then
came over to where we were and told us to return to
work. The majority of the employees told Harry that
they would rather not return that day. Harry finally
agreed to this but told us that we'd have to return the
following day unless the Union actually picketed our
sewer job. We returned the following day and
worked in spite of the presence of the Union 's picket
against Whitney.
A couple of days later Local #3 agent Harley
Davidson came to the site . He came over to me and
asked my name . He had a pad with him and I'm
pretty sure he wrote it down. All I gave him was my
first name. Davidson said at the time "we are in this
together and we have to hang together ," or words to
that effect. I asked Davidson why they couldn't
come right out and tell us if we should work or not, or
whether we could be ordered off the site or not.
Davidson made no reply to my question. There were
several other employees around at the time and
someone asked Davidson ( I don 't remember just
who) whether we could be fined for working while
that picket was out against Whitney . Davidson's
PAINTERS LOCAL 272 517
reply to that question was "I don't know." Davidson
also took the names of two other fellows, Penny
Northcut and an apprentice plumber working with us
that day at the site.
I have not talked with any Union agent since.
I have read the above statement and I certify that
the facts given are true and accurate to the best of my
knowledge and belief.
/s/ John H. Whitney'
Concluding Findings
Counsel for the Respondents at the hearing and coun-
sel for the Carpenters and the Painters in their briefs in-
sist that there is insufficient evidence to support a finding
that any of the Unions committed the unfair labor prac-
tices alleged in the complaint. At the hearing each of the
Respondents pointed out that there was no joint action of
Respondents alleged in the complaint nor was any kind of
agreement or understanding between the Unions
established by evidence at the hearing which would
render each of the Unions the agent of the others. In es-
sence, it is the claim of the Respondent Unions that the
fact that the business agents were together at the Marina
Beach Tract at a specific time, should not impute mutual
agency to the Respondent Unions, any more than any
type of meeting could constitute the individual partici-
pants in the meeting, the agent of each other.
The Trial Examiner, upon a review of all the evidence
here, is of the opinion that this proposition of Respond-
ents has limited application because here there is much
more conduct than mere presence of the business agents
on the Marina Beach Tract.
Counsel for Respondent Carpenters points out that the
picket signs of the Carpenters identified Whitney as the
party with whom the Carpenters had their dispute and
that the signs read as follows, "Howard H. Whitney Un-
fair, refuses to hire AFL-CIO carpenters, unfair labor
practice, Carpenters Local 1323, AFL-CIO." It is his
contention that since this picketing was for a lawful objec-
tive and was conducted in accordance with Moore Dry
Dock standards that his Union cannot be found guilty of
unfair labor practices.
Unfortunately, for Respondent Unions, there are
Board decisions which have dealt with these contentions
and sets of facts almost identical with those here, and
have found the participating unions guilty of unfair labor
practices.
It is undisputed that the Carpenters were conducting
picketing at the Marina Beach Tract with the picket signs
set forth above when the group of union business agents
came to the property. With their appearance, two mem-
bers of the Engineers and one member of the Laborers
stopped work and went to talk to the group of business
agents. In substance, the employees asked the business
agents what they should do, to continue work or to stop.
Pecoraro asked Davidson what the men should do.
Davidson replied that he could not tell them what to do,
that he could not tell them to cross or not to cross the
picket line, "but every engineer knows what to do on a
picket line" or words to that effect. Davidson also looked
at the men and said, "its a craftsman picket and we all
have to stick together on this thing." The men stopped
work. On the following day the men went back to work on
the advice of their employer. Davidson appeared at the
jobsite again and asked the men for their union cards. He
examined them and made some notations in his notebook
and handed the cards back to the men.
The circumstances here related are practically the
same as those in Northeastern Washington - Northern
Idaho Building and Construction Trades Council, 152
NLRB 975, 980. In that case the Board wrote:
While literal compliance with the standards of
Moore Dry Dock may indicate the primary nature of
common situs picketing, we have held that such an
inference is not conclusive but may be negatived by
other relevant evidence disclosing the Respondents'
true objective to be to enmesh neutral employers and
employees in its dispute with the primary employer.
Thus we must also consider the impact of the in-
stances involving oral inducements of neutral em-
ployees working on the Union Oil project described
above. [Emphasis supplied.]
In response to a question by Painting Foreman
Starr to his union business agent as to what effect he
should give to the picketing, Starr was reminded of
his "obligations" as a member of the union and to use
his own judgment. Hanson, a union carpenter, was
approached on the job by business agents of both the
Painters and Sheet Metal Workers and asked by the
business agent for the Sheet Metal Workers if he
knew Raingutter was not a union employer.
Thereafter, Hanson was asked to come down to the
union hall by the Carpenters' business agent where
he was told that Drywall had not signed a union con-
tract. Neither Starr nor Hanson thereafter worked
when Respondents picketed the Union Oil site. We
find under all the circumstances that the incidents in-
volving Starr and Hanson went beyond mere expres-
sion of neutrality and their purpose and effect was to
induce employees of secondary employers to cease
working. Accordingly, we conclude that by such con-
duct the Respondents induced and encouraged
refusals by these employers to continue working in
violation of Section 8(b)(4)(i)(B).
Moreover, we further find that the thrust of such
inducements belied the ostensible purpose of the
Respondents' picketing as being addressed only to
the public and the primary employer. In our opinion
the incidents disclosed that the true objective of the
Respondents' picketing on the Union Oil site was
deliberately to enmesh neutral employers in a dispute
of no direct concern to them, and thereby restrained
and coerced the secondary employers in violation of
Section 8(b)(4)(ii)(B) of the Act.
There is also a line of cases which hold that where a
union or unions try to enmesh the employees of neutral
employers in the dispute by causing them to cease work-
ing, the presumption of legality in Moore Dry Dock
picketing is overcome and the picketing and the induce-
ment both transgress the prescription of Section
8(b)(4)(B) of the Act and since the inducement of neutral
employees to cease work under the circumstances also
restrains and coerces secondary employers the conduct
violates Section 8(b)(4)(ii)(B) as well as Section
8(b)(4)(i)(B) of the Act.5
4 Minor mistakes and typographical errors in the affidavits have been
corrected
5 See International Brotherhood of Electrical Workers, Local Union
No II (L G Electric Contractors, Inc ), 154 NLRB 766, also Local
282, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers ofAmerica (J J White Ready Mix Concrete
Corp), 141 NLRB 424, 438, and International Brotherhood of Electrical
Workers, Local 861 (Plauche Electric, Inc), 135 NLRB 250
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With that aspect of the case determined we may turn to
the question of whether one, some , or all of the Respond-
ent Unions are guilty of the violations of the Act alleged
in the complaint . First , it is undisputed that the neutral
employees , members of the Engineers and Laborers
sought an answer from the group of business agents as to
what they should do . Davidson , who was known to the
two engineer members did the talking as noted above.
Holt of the Laborers , Bullard of the Engineers, and
Richards of the Carpenters stood silent during this con-
versation except when Davidson conferred briefly with
Richards in a conversation not heard by the employees.
Is the silence of these business agents under the circum-
stances here present sufficient to place liability on the
unions which the business agents represent ? In United
Hatters, Cap and Millinery Workers (Louisville Cap
Co.), 125 NLRB 1078, the Board dealt with the issue of
determining the object of the union 's picketing from the
failure of the union agent to repudiate statements made in
his presence at the picket line. The Board found that it
was well settled that a union is responsible for statements
or conduct on the picket line which occur in the presence
of its agent and are not repudiated by him . 6 From this the
General Counsel argues that where unions are
represented by their agents at a place where unlawful
conduct is occurring , the union agents may not stand by
in silence , taking the benefits of the conduct , without
sharing in the responsibility for the conduct . In Local
545, International Union of Operating Engineers,
AFL-CIO (Joseph Sarceno & Sons, Inc.), 161 NLRB
1114, the Board imposed liability on the union for its
agents refusal or failure to repudiate an employee 's threat
and to take action to stop an unlawful work stoppage. In
that case a union employee phoned the business agent
and asked whether a former member of the union and an
employee had gotten himself square with the union. The
employee added that if the former member hadn't com-
plied , "the boys are going to refuse to work with him
tomorrow ." The union agent confirmed that the former
member had not paid his dues and made no response to
the threat of a work stoppage . A stoppage resulted the
next morning . The union agent did not disavow the stop-
page , but instead told the employer that he would send
other operators to the job if the employer so desired.
Also, in Retail Fruit & Vegetable Clerks' Union Local
1017 (Crystal Palace Market), 116 NLRB 856, at fn. 14,
the Board imposed liability for 8 (b)(4)(A) conduct imput-
ing the activities of the business agent of one union to
another union and concluded that the two unions were en-
gaged in a joint venture in reliance , inter alia, on the fol-
lowing facts : One union established the policy of requir-
ing its members to respect the other 's picket line; the
agent of one union "maintained surveillance of the picket
line" and "actually walked in the line, although only for
a few minutes"; the agent of one union , in conversation
with members of his local, indicated approval of the
picket.
From the reasoning of the cases cited it would appear
that where business agents of several unions are on a
picket line which is made to enmesh neutral employees
into the dispute , and the business agents take no action to
disassociate themselves from these enmeshing efforts, the
unions must accept the responsibility for their agents'
conduct . In the instant case the Respondent Carpenters
were an active participant in the inducement because it
was the Carpenters picket line which became illegal with
the union agents efforts to enmesh the employees of
neutral employers, an action which the Carpenter
representative did not disavow. The Engineers and
Laborers were active participants in enmeshing the em-
ployees by the refusal or the failure of their respective
business agents to instruct their members as to what they
should do. The agents of the Engineers and Laborers by
this conduct precipitated the work stoppage of the three
employees of the neutral employer. Clearly the sole pur-
pose for this conduct was, and I so find, to make sure that
the Carpenters picket line was effective, in that no
member of the Respondent Unions worked for the
neutral employers, while picketing was being conducted.
It is equally clear, that although only three employees
were induced to stop work the picketing and inducement
was designed to affect all the neutral employers and their
employees on the jobsite.
For the reasons stated above, and upon the entire
record it is found that the Respondent Unions have com-
mitted the unfair labor practices alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with the operations of the
Companies set forth in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents have en-
gaged in certain unfair labor practices, it will be recom-
mended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions and upon the entire record in the case, I
hereby make the following:
CONCLUSIONS OF LAW
1. Respondents are labor organizations within the
meaning of the Act.
2. Howard H. Whitney, an individual , Ted Shuler, an
individual, Marina Plumbing, A & A Electric, Lovell
Austin Sheetrock, Ross Roofing, Dooley- Bruno Stucco,
Surf Tile Co., and Rainey Flooring Co., are employers
engaged in commerce or in an industry affecting com-
merce within the meaning of the Act.
3. By inducing and encouraging individuals employed
in industries affecting commerce to refuse in the course
of their employment to perform services, with an object
of forcing or requiring Marina Plumbing, Shuler, A & A
Electric, Lovell Austin Sheetrock, Ross Roofing,
Dooley-Bruno Stucco, Surf Tile Co., and Rainey Floor-
ing Co., to cease doing business with Howard H. Whitney
9 See fn 9, United Hatters , Cap and Millinery Workers (Louisville Cap
Co ), 125 NLRB 1078
PAINTERS LOCAL 272
the Respondents have engaged in unfair labor practices
affecting commerce within the meaning of Section
8(b)(4)(i)(B) and Section 2(6) and (7) of the Act.
4. By threatening , coercing , and restraining Marina
Plumbing, Shuler , A & A Electric, Lovell Austin
Sheetrock , Ross Roofing, Dooley-Bruno Stucco, Surf
519
Tile Co., and Rainey Flooring Co., to cease doing busi-
ness with Howard H . Whitney , the Respondents have en-
gaged in unfair labor practices affecting commerce within
the meaning of Section 8(b)(4)(ii)(B) and Section 2(6) and
(7) of the Act.
[Recommended Order omitted from publication.]