Sequoia District Council Of Carpenters

National Labor Relations Board - Board Decisions

Sep 19, 1973

206 N.L.R.B. 67 (N.L.R.B. 1973)

SEQUOIA DISTRICT COUNCIL OF CARPENTERS 67
Sequoia District Council of Carpenters, AFL-CIO and
Nick Lattanzio d/b/a Lattanzio Enterprises. Case
20-CC-1310
September 19, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
spondent had violated the aforementioned section of the
Act by engaging in conduct which had as an object forcing
or requiring other subcontractors and other persons to cease
doing business with Lattanzio.2 Respondent's answer ac-
knowledged service of the charge as amended and admitted
to being a labor organization but denied all other allega-
tions contained in the complaint. Thus, commerce data or
jurisdiction, responsibility for the picketing or agency, and
the type of order, if any, became primary ingredients of the
evidence presented by General Counsel.
Upon the entire record in the case and my observation of
the witnesses, I make the following:
On May 8, 1973, Administrative Law Judge James
T. Rasbury issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel and
Charging Party filed briefs in answer to Respondent's
exceptions.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Sequoia District Council of
Carpenters, AFL-CIO, Fresno, California , its offi-
cers, agents, and representatives, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This mat-
ter was heard on March 2, 1973, at San Francisco, Califor-
nia, upon charges I filed by Nick Lattanzio, d/b/a
Lattanzio Enterprises, herein called Lattanzio, alleging that
Sequoia District Council of Carpenters, AFL-CIO, herein
called Respondent, has engaged in unfair labor practices in
violation of Section 8(b)(4)(i) and (ii)(B) of the National
Labor Relations Act, as amended, hereinafter called the
Act. Complaint issued on December 11 alleging that Re-
1 A charge was filed by Nick Lattanzio, d/b/a Lattanzio Enterprises, on
November 24, 1972; a first amended charge was filed by the same party on
December 4, 1972; and a second amended charge was filed by the same party
on December 7, 1972.
All dates hereinafter will be 1972 unless otherwise indicated.
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Lattanzio is a general building contractor engaged in
building apartment projects for sale in the area of Fresno,
California. The evidence shows that Lattanzio purchased
during the year 1972 goods valued at $42,201.10 from Hot-
point Division of the General Electric Corporation which
products were manufactured outside the State of California.
(See G.C. Exh. 4(a), 4(c), 4(d), and 4(e).) 3 In addition, Gen-
eral Counsel's Exhibit 4(b) indicates on its face that Lattan-
zio purchased $17,752 worth of air conditioners from the
Bryant Air Conditioning Company's factory located in In-
dianapolis, Indiana, which were delivered to the Mitchell
Air Conditioning Company in Fresno, California, direct
from the factory for delivery to the Lattanzio job at 4674
East Shields Avenue, Fresno, California. Elmer Rau, the
owner of Madera Lumber and Hardware Company, testi-
fied that during 1972 Lattanzio purchased lumber from his
company in the amount of $50,826.56 which in turn had
been received from directly outside the State of California
(see C.P. Exh. 1). Mr. Rau further testified that in December
1972 Lattanzio purchased an additional amount of lumber
in the value of $13,700 which lumber was shipped directly
from outside the State of California but which was not
shown on the Charging Party's Exhibit 1. I am convinced
from all of the evidence that Lattanzio purchased during the
past year goods valued well in excess of $50,000 which were
shipped to Lattanzio either directly from outside the State
of California or directly from suppliers within the State of
California who in turn had received their goods directly
2 Section 8(b)(4)(i)(h)(B) of the Act provides as follows:
Section 8 ... (b) It shall be an unfair labor practice for a labor organiza-
tion or its agents .. . (4)(i) to engage in, or to induce or encourage any
individual employee employed by any person engaged in commerce or
in an industry affecting commerce to engage in, a strike or a refusal in
the course of his employment to uses manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or com-
modities or to perform any services ; or (ii) to threaten, coerce, or restrain
any person engaged in commerce or in an industry affecting commerce,
where in either case an object therefore is:... (B) forcing or requiring
any person to cease using, selling , handling, transporting, or otherwise
dealing in the products of any other producer, processor, or manufactur-
er, or to cease doing business with any other person . . . Provided that
nothing contained in this clause (B) shall be construed to make unlawful,
where not otherwise unlawful, any primary strike or primary picketing.
3 Based on the credited and undisputed testimony of John Cassidy, an
inventory supervisor for the past 6 years for the Hotpoint Division of General
Electric Corporation who testified that all Hotpoint appliances are manufac-
tured outside the State of California.
206 NLRB No. 8
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from outside the State of California. Upon the foregoing
facts I find that Lattanzio is a nonretail employer engaged
in a business affecting commerce within the meaning of
Section 2(2), (6), and (7) and Section 8(b)(4) of the Act and
that it is appropriate for the Board to exercise jurisdiction
in this case.4
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the Respondent admits, and I
herewith find the Sequoia District Council of Carpenters,
AFL-CIO, hereinafter called Respondent , to be a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Nick Lattanzio testified that in July of 1971 he attended
a meeting at the headquarters of Respondent in Fresno,
California, in the company of his father, Bruno Lattanzio,
and brother, Robert Lattanzio. They met with Larry Null
who identified himself as the executive secretary for the
Respondent, and John Horn who identified himself as being
a business agent for the Carpenters. According to the testi-
mony of Nick Lattanzio, which stands in the record undis-
puted, this meeting was concluded when Larry Null said to
Bruno Lattanzio "If you sign this agreement stating in the
future you will hire all AFL-CIO carpenters from this local,
I'll take the picket off your job." Whereupon Bruno Lattan-
zio signed the agreement in which he committed himself to
hire only AFL-CIO employees and subcontractors who are
signatory to the current crafts master agreement (see G.C.
Exh. 8). Thereafter the picketing which had precipitated the
conference ceased.
In June Bruno and Nick Lattanzio again met with Larry
Null and John Horn in the offices of Respondent. At the
June meeting Bruno Lattanzio was accused by Larry Null
of having broken the agreement which he had signed. When
Bruno explained that the job in question was not his, but
was being contracted by Nick Lattanzio, Larry turned to
Nick Lattanzio and said, "Here will you sign this?" Nick
Lattanzio replied, "Well I will have to take it to my attor-
ney." Larry Null then stated: "Well, if you don't sign that
agreement, I'm going to place a picket on the job."
The records authentication certificate from the United
States Department of Labor, Labor Management Services
Administration (G.C. Exh. 7) reflects that as of October 11,
1972, John Horn was president of the Sequoia District
Council of Carpenters and Larry W. Null was secretary
treasurer of the Sequoia District Council of Carpenters. In
the absence of any rebuttal evidence to the contrary it seems
reasonable to infer that John Horn and Larry Null were
each officers and responsible agents of the Respondent at
all material times herein.5
4 Siemons Mailing Service, 122 NLRB 81.
5 Napa and Solana Counties Building and Construction Trades Council,
AFL-CIO, et aL, 200 NLRB No. 18; District 30 United Mine Workers of
America, 163 NLRB 562; Teamsters Local 901, 202 NLRB No. 43.
B. The Current Events
Approximately October 17 Lattanzio started an apart-
ment with 132 units located at 4630 East Shields in Fresno,
California. Shortly after the project was started there were
subcontractors working on the job; Headliner Plumbing
Company was placing the underground plumbing on the
job, Harris Electric was involved in putting in the under-
ground electricity to the apartment units, and Manuel Evela
was involved in pouring the concrete and providing the
finished slabs. All of these subcontractors had been per-
forming their services at 4630 East Shields as subcontractors
for Lattanzio prior to November 13 and none of these sub-
contractors hired or used carpenters.
Nick Lattanzio testified that on November 13 at approxi-
mately 7 a.m., he observed a picket in front of the main
entrance gate carrying a sign which read, "Job Unfair to
Carpenters Sanctioned AFL-CIO." (See G.C. Exh. 5 for a
picture of picket and the sign.) According to the testimony
of Lattanzio, at 8 a.m. on the morning of November 13 he
questioned the picket, whose first name was Stuart, and was
advised by the picket that he, "was an unemployed carpen-
ter and he was sitting down at the hall and at Local 701,
Sequoia District Council Carpenters, and he said that John
Horn and Larry Null instructed him that he would be pick-
eting my [Lattanzio] job." 6 Approximately 8:30 a.m. of the
same morning the Headliner Plumbing trucks reported to
the job, but refused to cross the picket line. Ralph Anabile
testified that he was an estimator and coordinator for the
Headliner Plumbing Company and was quite familiar with
the Company's industrial relations policies. He testified that
on the early morning of November 13 he received a call via
the two-way radio from the foreman of the Lattanzio job,
Jim North, who advised him that there was a picket at the
Lattanzio job. After receiving that information Anabile tes-
tified that he directed North to take the crew to another job
until such time as he had had an opportunity to ascertain
whether or not it was a sanctioned picket line. Anabile
testified that he contacted the Plumber's Local 246 and
learned that it was a sanctioned picket line. Thereafter he
saw the pickets on several occasions as he passed by the
Lattanzio job, but his employees remained off the job until
a few days before Christmas.
Nick Lattanzio testified that the picket normally ap-
peared between 6:30 and 7 in the morning and remained
until approximately 2 in the afternoon. This continued ev-
ery day between November 13 and December 18 except for
the days on which it rained when the job would be shut
down and no one would work. While the record evidence
is something less than crystal clear it appears that pursuant
to a Stipulation and Order continuing Civil Case F-746,
U.S. District Court for the Eastern District of California,
entered into between counsel for the Board and counsel for
the Respondent, the picket sign and/or the manner of pick-
6 While this statement is hearsay it appears in the record without objection
by the Respondent's counsel and furthermore it was easily within the ability
of the Respondent to have produced either John Horn , Larry Null or the
picket himself to testify . Moreover no conclusion has been drawn from this
hearsay standing alone ; it has only served to buttress the undenied testimony
of Lattanzio as to the threat of picketing by Null unless Lattanzio signed the
agreement.
SEQUOIA DISTRICT COUNCIL OF CARPENTERS 69
eting was sufficiently altered so that it no longer interfered ject of causing the subcontractors to cease doing business
with the work being performed by the subcontractors . (See with Lattanzio , which conduct and activity on the part of
G.C. Exh. 6.) the Respondent is violative of Section 8(b)(4)(i ) and (ii)(B)
Analysis and Conclusions
As indicated earlier in this decision the Respondent failed
to produce any witnesses and was content to cross-examine
vigorously the General Counsel's witnesses and to argue
both on the record and in its brief that the employer in-
volved, Lattanzio, failed to meet the prescribed Board's
jurisdictional standards, and that there was a lack of proof
that the Respondent herein was responsible for the picket-
ing and that there is insufficient evidence to prove that the
picketing actually deterred any secondary employer's em-
ployees from working on the job.
The evidence clearly establishes that the Respondent had
a primary labor dispute with Lattanzio. The Respondent
wanted Nick Lattanzio to sign an agreement in which he
would agree to use only AFL-CIO employees and subcon-
tractors who were signatories to the current crafts master
agreement. Section 8(b)(4)(i)(ii)(B) of the Act proscribes
enmeshing neutral or secondary employers in disputes not
their own if an object is to force the cessation of business
between an employer and any other person or employer.
Where both secondary, or neutral employers, and a primary
employer are engaged in performing certain aspects of work
at a common situs , as often occurs in the construction in-
dustry, in order to accommodate the rights of all parties it
has been necessary to develop certain standards or criteria
for evaluating the objective of the picketing. This the Board
has done in Moore Drydock Co., 92 NLRB 547, where it
discussed in detail the condition which must prevail in order
to warrant an inference that the picketing is primary in
nature. These standards were as follows: (a) The picketing
is strictly limited to times when the situs of the dispute is
located on the secondary employer's premises ; (b) At the
time of the picketing the primary employer is engaged in its
normal business at the situs; (c) The picketing is limited to
places reasonably close to the location of the situs; and (d)
The picketing discloses clearly that the dispute is with the
primary employer. The Board and the courts have consis-
tently held that picketing will violate Section 8(b)(4)(i)(ii)(B)
of the Act if any of the standards as set forth in Moore
Drydock case are disregarded. The picket sign carried by the
pickets on the Lattanzio job failed to disclose that the
Respondent's dispute was with the primary employer, Lat-
tanzio7 In failing to clearly set forth the name of the prima-
ry employer with whom the Respondent was engaged in a
dispute the conduct of Respondent enmeshed neutral em-
ployees in a dispute not their own. Thus Respondent violat-
ed the congressional objective in enacting this provision,
which was to shield unoffending employers and others from
pressures in controversies not their own.8 I find and con-
clude that the tactic of the Respondent in the instant case
was calculated to enmesh the neutral subcontractors in the
dispute between the Respondent and Lattanzio with an ob-
of the Act.
There remains one aspect of this case to be discussed. The
General Counsel contends that a history of prior unfair
labor practice proceedings against this Respondent demon-
strates its penchant for repeatedly violating the Act's sec-
ondary boycott provisions and that a broad order is
therefore justified. In support of this contention the General
Counsel has provided copies of four recent settlement
agreements in which this Respondent was involved and one
fully litigated case in which the Board issued its decision
and order November 9, 1970, enforced January 10, 1972, by
the Circuit Court of Appeals for the Ninth Circuit. (See
G.C. Exh. 3.) I am aware that the Board has frequently held
that settlement agreements, and consent decrees arising
therefrom, have no probative value in establishing that vio-
lations of the Act have occurred, and, hence, they may not
be relied upon to establish a "proclivity" to violate the Act?
However, in two of the settlement agreements-Sequoia
District Council of Carpenters, et al. and Paul K. Doty, Cases
20-CP-403 and 20-CC-1143, and Sequoia District Council
of Carpenters, et al. and Transamerican Builders, Inc., Case
20-CC-1273, the settlement stipulations do not contain the
usual nonadmissions clause and do contain the following
language (par. X from the settlement stipulation in Case
20-CC-1143):
Respondents, and each of them agree that this Settle-
ment Stipulation and ensuing Board Order and Court
decree may be used in any proceeding before the Board
or an appropriate court to the same extent as an adjudi-
cated decision of the Board enforced by a United
States Court. By this Settlement Stipulation, Respon-
dents, and each of them, are on notice that the Board
reserves the right to institute contempt proceedings
against Respondents, or either of them, under the
Court decree which shall be issued pursuant hereto,
with respect to conduct of Respondents, or either of
them, or conduct for which Respondents, or either of
them, are legally responsible, involving an"employer or
person not expressly identified in this Stipulation, but
which conduct is encompassed by its terms and provi-
sions.
(Par. IX from the settlement stipulation in Case 20-
CC-1273.):
This Stipulation contains the entire agreement be-
tween the parties, there being no agreement of any
kind, verbal or otherwise, which varies, alters or adds
to it. Respondents agree, however, that for the purposes
of determining the proper scope of an order to be en-
tered against it in any other proceedings before the
Board or a Court, this Settlement Stipulation shall be
considered as though it were an adjudicated determina-
tion of the Board enforced by a United States Court of
Appeals that each Respondent has engaged in the con-
duct encompassed above in paragraph VII.
All parties agree that by execution of this agreement
7 See N.L.R.B. v. Local Union No. 55 and Carpenters District Council of 9 Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, I.D.T.
Denver and Vicinity, 108 NLRB 363, enfd. 218 F.2d 2265 (C.A. 10). (H. A. Carney and David Thompson, Partners, d/b/a C & T Trucking Co.), 191
8 N.L.R.B. v. Denver Building Council, 341 U.S. 675. NLRB 11.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each Respondent does not waive any defenses of fact
or law concerning this matter which each Respondent
may seek to assert in any proceeding not involving the
Board, and they further agree that this Stipulation,
agreement and understanding may not be used as an
admission, urged as a resjudicata determination or in
any other way be used by any party or employer or
other person against either Respondent in any action
in any tribunal, provided that the Board is not involved
in such other proceeding.
If this language is to have any meaning at all, I am of the
opinion that it may be relied upon by the General Counsel
to establish a proclivity on the part of the Respondent to
violate the Act. On the basis of the above I shall recommend
that a broad cease and desist order be issued.
CONCLUSIONS OF LAW
1. Nick Lattanzio, d/b/a Lattanzio Enterprises and the
Headliner Plumbing Company are persons engaged in an
industry affecting commerce within the meaning of Sections
2(6) and (7) and 8(b)(4) of the Act. ,,,
2. The Respondent, Sequoia District Council of Carpen-
ters, AFL-CIO, by inducing the employees of Headliner
Plumbing Company to refuse in the course of their employ-
ment to perform services at 4630 East Shields Avenue con-
struction site in Fresno, California, with an object of forcing
and requiring Headliner Plumbing Company to cease doing
business with Lattanzio Enterprises, has engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices and having found from past conduct
of the Respondent that it has a proclivity for violating the
Act in the same or similar manners my recommended order
will contain a broad cease -and-desist provision , and will
direct Respondent to take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the foregoing findings and conclusions and the
entire record and pufsuant to Section 10(c) of the Act, there
is hereby issued the following recommended:
ORDER10
Respondent, Sequoia District Council of Carpenters,
AFL-CIO, its officers, agents and representatives, shall:
1. Cease and desist from:
(a) Picketing, or encouragement of any individual em-
ployed by Headliner Plumbing Company, or by any other
person engaged in commerce or in an industry affecting
commerce, to engage in a strike or refusal, in the course of
his employment, to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials,
or commodities, or to refuse to perform any other services,
where an object thereof is to force or require Headliner
Plumbing Company, or any other person, to cease using,
handling, or otherwise dealing in the products or services
made available by Lattanzio Enterprises or to cease doing
business with that business enterprise, or any other person.
(b) Threats, coercion, or restraint directed against Head-
liner Plumbing Company, or any other person engaged in
commerce or in an industry affecting commerce, where an
object thereof is to force or to require Headliner Plumbing
Company, or any other person, to cease using, handling, or
otherwise dealing in the products or services made available
by Lattanzio Enterprises, or to cease doing business with
that business enterprise, or any other person.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post in conspicuous places at its business office, meet-
ing halls, or hiring halls operated by Carpenter locals within
its geographical jurisdiction, including all places where no-
tices to members are customarily posted, copies of the no-
tice attached to this report as an Appendix." 11 Copies of
this notice, to be furnished by the Regional Director for
Region 20, shall be posted immediately upon their receipt,
after being duly signed on behalf of Respondent by its duly
designated representative. Once posted, these notices shall
remain posted for 60 consecutive days thereafter. Reason-
able steps shall be taken by Respondent to insure that these
notices are not altered, defaced, or covered by any other
material;
(b) Sign and mail sufficient copies of the said notice to
the Regional Director for Region 20 for posting by Lattan-
zio Enterprises and Headliner Plumbing Company, these
companies being willing, at all locations where notices to
employees are customarily posted;
(c) Notify the Regional Director for Region 20 in writing,
within 20 days from the date of receipt of this Decision and
Recommended Order as to what steps Respondent has tak-
en to comply herewith.
10 In the event no exceptions are filed to this recommended order as
provided in Section 102.46 of the Rules and Regulations of the National
Labor Relations Board , the findings, conclusions , recommendations, and
recommended order herein shall, as provided in Section 102.48 of the Rules
and Regulations , be adopted by the Board and become its findings , conclu-
sions , and Order, and all objections thereto shall be waived for all purposes.
11 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor , Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To All Employees Of: Lattanzio Enterprises and Headliner
Plumbing Company
To All Members Of: Sequoia District Council of Carpen-
ters, AFL-CIO
SEQUOIA DISTRICT COUNCIL OF CARPENTERS
After a hearing during which all parties were given an op-
portunity to present evidence and argument, it has been
determined that Sequoia District Council of Carpenters,
AFL-CIO, violated the law by committing certain unfair
labor practices. In order to remedy such conduct we are
required to post this notice. Sequoia District Council of
Carpenters, AFL-CIO, intends to comply with this require-
ment and to abide by the following:
WE WILL NOT in any manner prohibited by Section
8(b)(4)(i)(ii)(B) of the National Labor Relations Act,
threaten, coerce, or restrain Headliner Plumbing Com-
pany, or any other person engaged in commerce or in
any industry affecting commerce, where, in either case,
an object thereof is to force or require the named em-
ployer, or any other person to cease using, handling, or
otherwise dealing in the products or services made
available by Lattanzio Enterprises, or to cease doing
business with that firm, or any other person.
WE WILL NOT in any manner prohibited by Section
8(b)(4)(i)(ii)(B) of the National Labor Relations Act,
induce or encourage any individual employed by
Headliner Plumbing Company, or by any other person
engaged in commerce or in any industry affecting com-
merce, to engage in a strike or refusal, in the course of
his employment, to use, manufacture, process, trans-
71
port or otherwise handle or work on any goods, articles,
materials, or commodities, or to refuse to perform any
other service, where an object thereof is, to force or
require the named employer, or any other person, to
cease using, handling, or otherwise dealing in the prod-
ucts or services made available by Lattanzio Enterpris-
es, or to cease doing business with that firm, or any
other person.
Dated By
SEQUOIA DISTRICT COUNCIL OF
CARPENTERS, AFL-CIO
(Labor Organization)
(Representati •- _, (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 13018 Federal Building, Box 360-
47, 450. Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-0335.