Springfield Building and Construction Trades Council

National Labor Relations Board - Board Decisions

Apr 25, 1958

120 N.L.R.B. 600 (N.L.R.B. 1958)

600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO MEMBERS AND ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT maintain or enforce the clauses of any agreement with Cooper
Alloy Corporation (Aircraft Division), or any other employer, which require,
employees to fill out checkoff authorizations.
WE WILL NOT in any other manner cause or attempt to cause Cooper Alloy
Corporation (Aircraft Division), or any other employer, to discriminate against.
an employee in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees in the,
exercise of the right to self-organization, to form labor organizations, to joins
or assist any labor organization, to bargain collectively through representatives.
of their own choosing, and to engage in concerted activities for the purpose,
of collective bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right may be affected'
by an agreement requiring membership in a labor organization, as a conditions
of employment, as authorized in Section 8 (a) (3) of the Act.
LOCAL 5250, UNITED STEELWORKERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be-
altered, defaced, or covered by any other material.
Springfield Building and Construction Trades Council; Car-
penters' District Council of Springfield , Massachusetts, and
Walter J. LaFrancis , and Local Union No. 1 of the Brick-
layers, Masons and Plasterers International Union of America„
AFL-CIO, and James M. Leonard and Leo Spear Construe--
tion Co., Inc.
Springfield Building and Construction Trades Council ; Carpen-
ters' District Council of Springfield , Massachusetts, and Wal-
ter J. LaFrancis and James F. Rogers, d/b/a Rogers Heating
and Engineering Company. Cases Nos. 1-CC-180 and 1-CC-184
April 25,1958
DECISION AND ORDER
On December 9, 1957, Trial Examiner Sidney Lindner issued his-
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair,
labor practices, and recommending that they be required to cease and.
desist therefrom and to take certain affirmative action, as set forth
in the Intermediate Report, a copy of which is attached hereto-
Thereafter, the Respondents filed exceptions to the Intermediate
Report and supporting briefs; the General Counsel also filed a brief
with the Board.
120 NLRB No. 87.
SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL 601
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
,of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents Springfield Building and
Construction Trades Council; Carpenters' District Council of Spring-
field, Massachusetts, and its agent, Walter J. LaFrancis; and Local
Union No. 1 of the Bricklayers, Masons and Plasterers, International
Union of America, AFL-CIO, and its agent, James M. Leonard, their
officers, representatives, successors, and assigns shall:
1. Cease and desist from :
(a) Inducing or encouraging the employees of Leo Spear Con-
struction Co., Inc., Hampden Construction Co., W. J. Quinn Con-
struction Co., or any other employer to engage in a strike or a
'concerted refusal in the course of their employment to perform
services for their respective employers where an object thereof is to
force or require the towns of Southwick or West Springfield or any
other town, employer or person to cease doing business with Rogers
Heating and Engineering Company or Valley Electric and Heating
'Service or with any other employer or person.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post at the business offices and meeting places of the Respond-
ents and at all other places where notices to its members are custom-
arily posted, copies of the notices attached to the Intermediate Report
marked "Appendixes A, B, and C." 2 Copies of the said notices, to be
'We agree with the Trial Examiner 's conclusion that section 12 in article IX of the
contract between Respondent District Council and Building Trades Employers Associ-
ation, Inc., is not a "hot -cargo" clause. The Board and court decision in the so-called
"hot-cargo" cases, urged by the Respondents as pertinent to the issues of this case, are
therefore totally inapposite . Section 12 reads as follows • .
Members are not allowed to work with non-union carpenters or craftsmen specified
by the District Council nor with apprentices not recognized by the District Council.
z These notices are amended by striking the words "The Recommendations of a Trial
Examiner" and substituting the words "A Decision and Order." In the event that this
Order is enforced by a decree of a United States Court of Appeals , there shall be sub-
stituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a
Decree of the United States Court of Appeals , Enforcing an Order."
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional Director for the First Region, shall, after
being duly signed by the authorized representatives of the Respond-
ents be posted immediately upon receipt thereof and maintained for
a period of sixty (60) consecutive days thereafter in conspicuous
places including all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondents to insure
that said notices are not altered, defaced or covered by any other
material.
(b) Upon receipt from the Regional Director of copies of the said
notices, forthwith return to him copies thereof, duly signed as afore-
said, for posting by Spear, Quinn, Hampden, Rogers, and Valley, said
employers willing, in places where notices to employees are custom-
arily posted.
(c) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps Respond-
ents have taken to comply herewith.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge filed by Arthur M. Marshall, attorney, on
behalf of Leo Spear Construction Co., Inc., herein called Spear, and docketed under
Case No. 1-CC-180, the General Counsel of the National Labor Relations Board
by the Regional Director for the First Region issued a complaint on August 20,
1957, against Springfield Building and Construction Trades Council; Carpenters'
District Council of Springfield, Massachusetts, and Walter J. LaFrancis and Local
Union No. 1 of the Bricklayers, Masons and Plasterers International Union of
America, AFL-CIO, and James M Leonard, herein respectively called Respondents
and Trades Council, District Council, LaFrancis, Bricklayers and Leonard, alleging
that Respondents have engaged in and are engaging in conduct violating Section
8 (b) (4) (A) and Section 2 (6) and (7) of the Act.
Upon another charge and amended charge filed by Arthur J. Marshall, attorney,
on behalf of James F. Rogers, d/b/a Rogers Heating and Engineering Company,
herein called Rogers, and docketed under Case No. 1-CC-184, the General Counsel
by the Regional Director for the First Region, issued a complaint on September
10, 1957, against the Trades Council, the District Council, and LaFrancis, alleging
that Respondents have engaged in and are engaging in conduct violating Section
8 (b) (4) (A) and Section 2 (6) and (7) of the Act. By Order of the Regional
Director pursuant to Section 102.33 of the Board's Rules and Regulations, Series 6,
as amended, the above-enumerated cases were consolidated.
Copies of the order consolidating cases, the respective complaints, charges and
amended charges and notice of hearing were served upon the Respondents. Re-
spondents filed a joint answer in each case denying the commission of the unfair
labor practices alleged.
Pursuant to notice, a hearing was held in Springfield, Massachusetts, on October
1, 1957, before the duly designated Trial Examiner. All parties were represented
at the heating and were afforded full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence bearing on the issues. The
parties were given opportunity to present oral argument at the close of the hearing
and to submit briefs and proposed findings of fact and conclusions of law. Briefs
were received from the General Counsel and from counsel for the Respondents
and have been duly considered. Subsequent to the close of the hearing, a written
motion to correct the record was received from the General Counsel. The said
motion was assented to by counsel for the other parties and it is hereby granted.
Upon the entire record in the case, and upon observation of the demeanor of
witnesses, I make the following:
SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL 603
FINDINGS OF FACT
1. THE BUSINESSES OF THE COMPANIES
Leo Spear Construction Co., Inc., is a corporation duly organized under and
existing by virtue of the laws of the Commonwealth of Massachusetts. It maintains
its principal office and place of business in Springfield, Massachusetts, and is now
and has been continuously engaged in the business of general contracting in the
construction industry. During the past year Spear performed construction services
valued in excess of $50,000 outside the Commonwealth of Massachusetts.
James F. Rogers, a private individual, is and has been at all times material herein,
doing business under the trade name and style of Rogers Heating and Engineering
Company. Rogers maintains his principal office and place of 'business in Spring-
field, Massachusetts, and is now and continuously has been engaged in the business
of selling, installing, and servicing heating and air conditioning equipment and
related products. During the year 1956 Rogers sold and shipped equipment, per-
formed services valued in excess of $50,000 outside the Commonwealth of Massa-
chusetts, and supplied services valued at approximately $75,000 to persons engaged
in interstate commerce.
It is admitted and I hereby find that Spear and Rogers are engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Springfield Building and Construction Trades Council; Carpenters' District Coun-
cil of Springfield, Massachusetts; and Local Union No. 1 of the Bricklayers, Masons
and Plasterers International Union of America, AFL-CIO, are labor organizations
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The material facts in these cases are either not in dispute or are admitted in
Respondents' answers. These proceedings arise primarily out of a continuing effort
by Respondent Trades Council to completely eliminate the intermingling of union
and nonunion labor on construction jobs in its geographical jurisdiction. Thus, on or
about May 23, 1957,' at a meeting called by the Trades Council and attended by 12
business agents of unions,2 constituent members of the Respondent Trades Council,
as well as some 20 employers engaged in the construction business, members of the
Building Trades Employers Association, Inc., President William Morris of Respond-
ent Trades Council addressing the meeting stated it was called for the purpose of
emphasizing the fact that Respondent Trades Council no longer intended to tolerate
union and nonunion men working together on the same job and that thereafter jobs
must be run either with 100 percent unionmen or they would be run nonunion.
The Town of Southwick Job
On or about June 10, Spear, as general contractor, submitted a written bid to the
town of Southwick for the construction of an addition to the town office building.
Spear was the low bidder. Included in Spear's bid were the subbids of Rogers for
the heating work and Valley Electric Heating Service for the electrical work.3
Spear testified that several days after the bid opening, he received a telephone call
from Forgue, secretary of Respondent Trades Council, who said he wanted to discuss
the nonunion condition which existed in the bid. The employees of Rogers and
Valley were not represented by any labor organization, whereas Spear had a contract
with Respondent District Council 4 and his employees were members of local unions
i All dates herein occurred in 1957
2 Included in this group were Walter J. LaFrancis, business agent of the Respondent
Carpenters' District Council, James Al Leonard, business agent of Respondent Bricklay-
ers, George Forgue, secretary of Respondent Tiades Council, and one Hogan, business
agent of the Iron Workers Union
3Ir appeals that the custom waa for the subbidders to submit their own bids for the
specified woik they aaeie to peifoiin If their bids weie the lonest foi such work, they
were then included in the bid of the general contractor for the oveiall job The proposed
contract price for the entire job was $19,200 This amount included the subbids-
$2,340 for the electrical work and $1,565 for the heating work.
4Aiticle IX-"Working Conditions," section 12 of the agreement between Respondent
District Council and the General Contiactois, ixho are membeis or nonmenibeis of the
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliated with Respondent Trades Council. Spear advised Forgue that although he
was the low bidder, he had not yet been awarded the contract and there was nothing
for them to discuss. Forgue told Spear that if the job proceeded with the existent
nonunion condition, there would be "trouble."
On June 15 Spear and the town of Southwick entered into "The Standard Form
Agreement between Contractor and Owner for Construction of Buildings," which
included, among other things, the electrical and heating work. At the same time, the
parties orally agreed that if any labor difficulties arose on the job, the "objectionable
parties," holding the heating and electrical subcontracts would be removed from the
main or general contract.
On June 17 Forgue again talked with Spear on the telephone and told him that
either he would attend the meeting at the Central Labor Union hall or the Southwick
job would not start. Spear agreed to attend the meeting. Spear then obtained ap-
proval from the town of Southwick to release the heating and electrical work from
the general contract. Thereafter, on July 3, the town of Southwick entered into
separate contracts with Rogers and with Valley to perform the heating and electrical
work.
On June 24 Spear, in the company of Raymond Shattuck, executive secretary of
the Building Trades Employers Association, attended a meeting with some 10 or 11
union business agents including Morris, Forgue, Leonard, and LaFrancis at the
Central Labor Union hall. Morris told Spear there was a nonunion condition in
Southwick and that nonunion contractors would not be allowed on that job. Morris
asked Spear what he was going to do about it. Spear replied that there was nothing
to do, since the electrical and heating work were no longer part of his general con-
tract. At Shattuck's suggestion , a meeting was to be arranged between the town of
Southwick and the Respondent Trades Council to see if the matter could not be
straightened out to everyone' s satisfaction.
On July 1 Morris and two other representatives of Respondent Trades Council
met with the town of Southwick building committee and Carlo Tagliavini, town
attorney. Morris explained the function and mechanics of labor unions to the group.
Morris stated that neither Rogers nor Valley was legally eligible to enter into con-
tracts with the town of Southwick because their employees could not work in har-
mony with unionmen .5 Morris "impressed [on the group] that if it signed contracts
with Rogers or Valley or any other nonunion organization, there would be some
steps taken to stop the work." During the discussion, Morris suggested that the
Building Committee reject the present bids and ask for new ones, which he indicated
could be submitted to the Building Committee the following morning. This was
rejected because it did not comply legally with the advertising requirements. The
suggestion was then made by the town clerk that a special town meeting be called
to ascertain by a vote of the townspeople if they would appropriate additional funds
for the building so that the next lowest bidder, who happened to run a union shop,
would be hired. Morris agreed to this, but refused to go along with the request that
in the event the townspeople voted down an additional appropriation, he would in
effect permit the job to proceed with the original bidders. The result was that no
agreement was reached and no town meeting was called.
On July 8 Respondent District Council with the approval of Respondent Trades
Council, directed and instructed its members employed by Spear to quit work on
the Southwick job. Spear testified that none of Rogers' or Valley's employees had
appeared or worked on the Southwick job up to that time. As a result of such
instructions , Spear's carpenters walked off the job. Spear talked with Morris that
afternoon and was told that Respondent Trades Council had decided upon this course
of action as a result of the meeting with the town of Southwick officials who were to
notify Respondent Trades Council what action they were going to take on the
objectionable subcontractors, but since they did not do this, it was decided to stop
the job.
On the afternoon of July 8 Respondent Leonard, business agent of Respondent
Bricklayers, appeared at the Southwick job and talked with Max Weiner, brick-
Building Trades Employers' Association provides, "Members aie not allowed to work with
non-union Carpenters or Crattsmen specified by the District Council nor with apprentices
not recognized by the District Council "
s Morris was undoubtedly referring to Massachusetts General Laws, chapter 149, sec-
tion 44 A, which relates to contracts for construction of public buildings by the Com-
monwealth or any governmental unit thereof, including towns, and in section 44 A, F
and G, provides that the general bidders, and subbidders, respectively, "shall certify that
he is able to furnish labor that can work in harmony with all other elements of labor
employed or to be employed on the work."
SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL 605
layer foreman and a member of the Union. Two mechanics and an apprentice,
all members of Respondent Bricklayers, were working on a wall some 25 feet away
from where Leonard and Weiner were conversing. Weiner told Leonaid there
was "union trouble" on the job. Leonard in turn informed Weiner there was a
nonunion condition on the job and that Respondent District Council had ordered
its men off the job 6 The bricklayers, who were employees of a subcontractor, the
Hampden Construction Company, did not report for work on July 9.
Spear's carpenters and Hampden's bricklayers did not return to the Southwick
job until sometime after August 24, when the United States District Court for
the District of Massachusetts by Chief Judge Sweeney issued an Order granting
Temporary Injunction restraining Respondents from engaging in a strike pending
the final disposition of this matter by the Board.
The Cowing School job in the Town of West Springfield
In March 1957 the school survey committee of the town of West Springfield,
proposed to the town that its Cowing School be renovated and placed back in
operation. Following this, a number of contracts were let out to individual con-
tractors who submitted low bids, to perform the necessary renovation work. For
example, the carpentry contract was awarded to the W. J. Quinn Construction
Company, hereinafter referred to as Quinn, and the ventilating contract to the
Rogers Heating and Engineering Company.
President Morris of Respondent Trades Council was invited to attend and speak
to the school survey committee at its meeting in July 1957. Morris told the com-
mittee that its contracts with individual contractors were illegal and that there
should have been a general contractor for the entire job? Morris also discussed
the question of union labor performing the work and Henry Allen, chairman of
the committee, told Morris that the town of West Springfield awarded contracts
to anyone willing to perform services without distinction as to the use of union or
nonunion labor. The question was then raised whether there might be trouble
on the job because of the conflict between union and nonunion workers. Morris
agreed that there might be some trouble. When the matter of Rogers' contract was
mentioned, Allen told Morris that it was his understanding that Rogers had applied
for union membership. Morris replied that "Rogers wants it the way he wants it,
and we don't do business that way."
On or about August 7 Respondent District Council and Respondent LaFrancis
acting in concert, directed and instructed members of Respondent District Council
employed by Quinn 8 to quit work on the Cowing School job. As a result, Quinn's
carpenter employees walked off the job and a general strike then ensued with all
other labor leaving the job.
About a week later, a meeting was held attended by the school survey com-
mittee, the superintendent of schools, and union representatives, including Morris
and Hogan. One of the union representatives asked that the town revoke its con-
tract with Rogers and give it to a union firm. The chairman said this could not
be done. Hogan remarked that union labor would not work with nonunion labor.
Morris then stated that if Rogers moved off the job, the union labor might come
back to work. Allen was requested to talk to Rogers. Shortly thereafter, Rogers
left the job. Allen gave Morris this information on August 15 or 16, and the
latter said lie would pass the word along. On August 19 the union labor in the
different trades reported back on the job and worked without interruption even
though some Rogers' employees subsequently came in on the job.
Contentions and Conclusions
Respondents' admissions and the findings hereinabove made reveal clearly that
(1) Respondents induced and encouraged employees of Spear, Hampden, and
Quinn to engage in a strike; (2) thereafter the employees walked off the Southwick
and Cowing Schools jobs respectively; and (3) an object of their acts and conduct
was to force or require Spear and/or the town of Southwick to cease doing business
with Rogers and Valley and Quinn and/or the town of West Springfield to cease
doing business with Rogers, just so long as Rogers and Valley were subcontractors
on the jobs and employed nonunion labor.
U Based upon a stipulation entered into between counsel for the General Counsel and
counsel for Respondents
4 See Massachusetts General Laws, chapter 149, section 44 A
8 Quinn was in contractual relation with Respondent District Council. See footnote 4,
supra.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The language of the Act which is essential to the issues in this proceeding is as
follows:
Sec. 8 (b) It shall be an unfair labor practice for a labor organization or its
agents .. .
(4) to engage in ... a strike .. where an object thereof is: (A) forcing
or requiring . . . any employer or other person . . . to cease doing business
with any other person; ...
But for the special defenses raised by Respondents in their answers, in the oral
argument and in their briefs it appears clear that the elements necessary to spell out
a violation as alleged in the complaint are present here. See N L. R. B v. Denver
Building and Construction Trades Council, et al. (Gould & Preisner), 341 U. S.
675; International Brotherhood of Electrical Workers Local 501, et al. v. N. L. R. B.
(Samuel Langer), 341 U. S. 694, N. L. R. B. v. Local 74, United Brotherhood of
Carpenters etc. (Watson's Specialty Store), 341 U. S 707
We turn therefore to an analysis of the Respondents' defenses. The Respondents
contend that the clause contained in article IX, section 12 of the contract between
Respondent District Council and the Building Trades Employers Association, Inc ,9
is a hot cargo or hot-work clause, which has as its purpose "that union members
shall not work on goods or materials which are also being worked on by non-
union tabor." The Respondents recognize the Board's position on the question of
the hot-cargo clause as a defense, but urge reconsideration in the light of the recent
decisions in General Drivers etc, Local 886 v N. L R B. (American Iron &
Machine Works), 247 F. 2d 71 (C. A., D. C.); Milk Drivers and Dairy Em-
ployees Local Union No. 338, etc. v. N. L. R. B. (Crowley's Milk Co.), 245 F. 2d
817 (C A. 2). Further, Respondents contend that Massachusetts General Laws,
chapter 149, section 44 A, which in part provides that the general contractor in
public building construction "shall certify that he is able to furnish labor that can
work in harmony with all other elements of labor employed or to be employed on
the work" is part and parcel of the contracts between Spear and the town of South-
wick, Spear and Respondent District Council, and Hampden and Respondent Brick-
layers and is tantamount to a hot-cargo clause governing the relationship of all
parties to the job and having the sanctity of the Commonwealth of Massachusetts
behind it.io
The commonly accepted definition of a "hot-cargo" clause in a collective-bargain-
ing contract is one which grants union members the right to refuse to work on un-
fair goods. No mention of "unfair" or "non-union" goods is made in the contract
clause under consideration here. Nor can it be said that Respondents' interpreta-
tion of the clause "that union members shall not work on goods or materials which
are also being worked on by non-union labor" is a fair one. The only restrictions
referred to in the contract clause are that "[union] members are not allowed to
work with non-union Carpenters or Craftsmen specified by the District Coun-
cil.. . Certainly Respondents' interpretation as set forth above that the clause
in question is a hot-cargo clause is strained and I so find. I am more inclined to the
view of the General Counsel set forth in his brief that the contract in issue here con-
stitutes a discriminatory hiring provision, an all union construction clause which has
been condemned by the courts and the Board since the Act declared the closed-shop
clause illegal, and that compliance with its provisions would constitute violations of
other sections of the Act. The court's decisions in American Iron & Machine
Works and Crowley's Milk Co., supra, would thus appear to have no particular
relevance here.
To consider that portion of the State law quoted above a "hot-cargo" clause is
as Chief Judge Sweeney aptly stated in Civil Action No. 57-722-3, "indeed stretch-
ing a point." Moreover, "the vagaries of State rules of law may not override pro-
visions of a Federal Act geared to the effectuation of an important National Labor
policy." See Henry V. Rabouin d/b/a Conway's Express v. N. L. R. B., 195 F. 2d
906 (C. A. 2), citing Hill v. State of Florida, ex rel Watson, Attorney General,
325 U. S. 538 and N. L. R. B. v Hearst Publications, Inc., 322 U. S. 111, 123.
Indeed, Chief Judge Sweeney again referring to the State law in the above- enumer-
ated case , says, "This statute regulates the awarding of contracts for public projects
and imposes certain requirements on the general contractor, which certainly was
not intended to legalize action on the part of the Union which is unlawful under
9 See footnote 4, supra
io This, of course, Respondents contend, applies equally to Quinn and the Cowing
School job
SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL 607
Federal law." I do not accept that we are here dealing with a "hot-cargo " clause
and I find no merit in this defense.
Respondents next contend that Rogers and Valley were not "innocent third par-
ties" protected by the Act , because of the illegality of their contracts with the town
of Southwick . Massachusetts General Laws , chapter 149, section 44 G, 44 I (3) and
(4) requires among other things that in the case of a public building there shall be
one contract between the town and the general contractor , and that the subcon-
tractor shall enter into separate subcontracts with the general contractor "within 5
days, Saturdays , Sundays and legal holidays excluded" after notice of their selec-
tion given pursuant to the statute . As found above , after Spear notified the town
of Southwick that he would have trouble on the job if Rogers and Valley were con-
tinued as subcontractors under his general contract , the town issued "change
orders" and subsequently entered into separate contracts with Rogers and with
Valley.
True, as Respondents contend, this may have been a violation of the State statute.
However, we are not called upon in the instant situation to resolve this issue, but
merely to determine whether a Federal statute has been violated.
The Act was written in part to protect neutral employers in cases of secondary
boycotts . So far as the evidence in the record before me reveals, Rogers and Valley
were such neutral employers who were not engaged in any labor dispute and come
within the purview of the Act, which preempts the field in which it operates.
Furthermore, I agree with the position of the General Counsel, set forth in his
brief , that "to subject the Federal law to multitudinous State statutes , ordinances,
and policies would be to completely destroy the uniformity which Federal law seeks
and must necessarily preserve and would serve to render it ineffectual ." This defense
I find is untenable.
Respondents next contend that their acts and conduct constituted permissible
primary activity , since their disputes were directed only against Spear and Quinn,
and further there was no contractual or business relationship between Spear on
the one hand and Rogers and Valley on the other hand at the time of the strike.
In the first place it must be pointed out that Respondents admitted in their an-
swer in Case No. 1-CC-180 that the town of Southwick contracted directly with
Rogers and Valley, a fact which the record reveals they were aware of prior to the
time Spear's carpenters walked off the job. Secondly , it appears that Spear abided
by the terms of his contract with Respondent District Council , employing all union
labor and even eliminating nonunion subcontractors from his general contract.
Thus it is clear that the Respondent District Council had no primary dispute with
Spear . See Texas Industries, Inc., 112 NLRB 923.
Even assuming , because of the State statute, that Spear had a general contractor-
subcontractor relationship with Rogers and Valley, under the doctrine laid down
in the Denver Building Trades case, supra , Spear was a secondary employer whom
the Act seeks to protect.
With respect to Respondents ' further contention that the object of the strike was
directed against Spear and Quinn in order to force them to live up to the terms of
their contract with Respondent District Council, it is undisputed that Respondents
vocalized the fact that an object of the strike in both instances was directed against
Rogers and Valley to force the termination of their contracts with the towns of
Southwick and West Springfield , respectively , because Rogers and Valley employed
nonunion labor. The Supreme Court in the Denver Building Trades case , supra,
held that a strike with such an object was an unfair labor practice within the mean-
ing of Section 8 (b) (4) (A).
Finally, as the General Counsel points out in his brief , if the dispute was ac-
tually between Respondent District Council and Spear and Quinn , why was not
resort had to the arbitration procedure in the contract? 11
From the above it is clear that this defense of Respondents is without merit and
I so find.
Next Respondents claim that because of the transfer of work from Spear, the
general contractor , to Rogers and Valley as separate , independent contractors with
the town of Southwick , that they were so "allied " with Spear, that the strike was
not prohibited under Section 8 (b) (4) (A).
11 Article X of the contract entitled "Strikes, Lockouts and Exceptions"
1 Since this agreement provides for the orderly, peaceful settlement of all dis-
putes these provisions shall be adhered to
2. All grievances not otherwise mutually settled shall be subject to arbitration
as hereinafter provided.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted heretofore, Respondents admitted in their answer that the town of
Southwick let the contracts out to Rogers and Valley directly. True this took
place when there may have been "trouble" brewing, but the fact remains, no strike
had yet been called on the job. Furthermore, when we think of the transfer of
"struck work," we are considering work which the struck employer would under
normal circumstances perform himself, but because of the strike, transfers such
work to an ally. We are not faced with that situation in the instant case. Even
though Spear was the general contractor, it was never contemplated that he would
perform either the electrical or heating work. In fact, the bid submitted by Spear
clearly reveals a breakdown of the work of the general contractor and the subbids
of the other trades. Moreover, Rogers and Valley conducted their own business,
over which Spear exercised no control. The situation in the present case is entirely
different from what existed in the Project Engineering Company (Ebasco) 12 and
Royal Typewriter 13 cases where the court held that an employer who performed
struck work for another employer involved in a labor dispute was an "ally" of that
employer and therefore was not doing business with that employer as to be entitled
to protection of Section 8 (b) (4) (A).
I find that Rogers and Valley were not "allied" to Spear and further find this
defense without merit.
In their brief in case No. 1-CC-184, the Respondents urged that since the General
Counsel did not petition a District Court of the United States for appropriate
injunctive relief pending the final adjudication of the Board with respect to such
matter, which they contend under Section 10 (1) is a condition precedent to the
issuance of a complaint, that this proceeding is not now properly before the Board.
Section 10 (1) is designed to assist a preliminary investigation of the charges before
the filing of a complaint. Such proceeding is independent of that on the merits
under Section 10 (a) through (d).
Upon all of the foregoing and the record as a whole I find that Respondents
induced or encouraged the employees of Spear, Hampden, and Quinn to engage in
strikes or concerted refusals in the course of their employment to perform services
for their respective employers with an object of (1) forcing or requiring Spear and
the town of Southwick to cease doing business with Rogers and Valley and (2)
forcing or requiring Quinn and the town of West Springfield to cease doing business
with Rogers. By such conduct Respondents have violated Section 8 (b) (4) (A}
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Companies set forth in section 1, above, have
a close , intimate , and substantial relation to trade, traffic , and commerce among
the several States and tend to lead to labor disputes burdening commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in conduct violative of Section
8 (b) (4) (A) of the Act, I will recommend that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Springfield Building and Construction Trades Council; Carpenters' District
Council of Springfield, Massachusetts; and Local Union No. 1 of the Bricklayers,
Masons and Plasterers International Union of America, AFL-CIO, are labor
organizations within the meaning of Section 2 (5) of the Act. Walter J. LaFrancis
and James M. Leonard are agents of the Carpenters' District Council of Spring-
field, Massachusetts, and Local Union No. 1 of the Bricklayers, Masons and
Plasterers International Union of America, AFL-CIO, respectively, within the
meaning of the Act.
Is Douds v. Metropo4tan Federation of Architects, etc (Project Engineering Company),
75 F. Supp 672 (D C., N.Y.) -
13N L. R. B. v. Business Machine and Office Appliance Mechanics Conference Board,
Local 459, International Union of Electrical Radio and Machine Workers, CIO (Royal'
Typewriter), 228 F 2d 553 (C A 2).
SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL 609
2. The above-named labor organizations and the agents have engaged in unfair
labor practices within the meaning of Section 8 (b) (4) (A) of the Act by inducing
or encouraging the employees of Leo Spear Construction Co., Inc., Hampden
Construction Company, and W. J. Quinn Construction Company, to engage in
concerted refusals in the course of their employment to perform services for their
respective employers with an object of forcing or requiring said employers and/or
the towns of Southwick and West Springfield to cease doing business with James
F. Rogers, d/b/a Rogers Heating and Engineering Company, and Valley Electric
and Heating Service.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL MEMBERS OF SPRINGFIELD BUILDING AND CONSTRUCTION TRADES
COUNCIL
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby give notice that:
WE WILL NOT engage in, or induce or encourage the employees of Leo
Spear Construction Co. Inc., Hampden Construction Company, W. J. Quinn
Construction Company, or the employees of any other employer to engage in
a strike or a concerted refusal in the course of their employment to perform
services for their respective employers where an object thereof is to force or
require the towns of Southwick or West Springfield or any other town, em-
ployer, or person to cease doing business with Rogers Heating and Engineering
Company or Valley Electric and Heating Service or with any other employer
or person.
TRADES COUNCIL,
SPRINGFIELD BUILDING AND CONSTRUCTION
Labor Organization.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF CARPENTERS' DISTRICT COUNCIL OF SPRINGFIELD,
MASSACHUSETTS, AND ITS AGENT WALTER J. LAFRANCIS
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board and in order to effectuate the policies of the National Labor Relations
Act, we hereby give notice that:
WE WILL NOT engage in, or induce or encourage the employees of Leo Spear
Construction Co. Inc., Hampden Construction Company, W. J. Quinn Con-
struction Company, or of any other employer to engage in a strike or a con-
certed refusal in the course of their employment to perform services for their
respective employers where an object thereof is to force or require the towns
of Southwick or West Springfield or any other town, employer, or person to
cease doing business with Rogers Heating and Engineering Company or Valley
Electric and Heating Service or with any other employer or person.
CARPENTERS' DISTRICT COUNCIL OF SPRINGFIELD,
MASSACHUSETTS, AND ITS AGENT WALTER J.
LAFRANCIS,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
483142-59-vol. 120-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
NOTICE TO ALL MEMBERS OF LOCAL UNION No. I OF THE BRICKLAYERS, MASONS
AND PLASTERERS INTERNATIONAL UNION OF AMERICA, AFL-CIO, AND ITS
AGENT JAMES M. LEONARD
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board and in order to effectuate the policies of the National Labor Relations
Act, we hereby give notice that:
WE WILL NOT engage in, or induce or encourage the employees of Leo Spear
Construction Co. Inc., Hampden Construction Company, W. J. Quinn Con-
struction Company, or of any other employer to engage in a strike or a con-
certed refusal in the course of their employment to perform services for their
respective employers where an object thereof is to force or require the towns of
Southwick or West Springfield or any other town, employer, or person to cease
doing business with Rogers Heating and Engineering Company or Valley
Electric and Heating Service or with any other employer or person.
LOCAL UNION No. 1 OF THE BRICKLAYERS, MASONS
AND PLASTERERS INTERNATIONAL UNION OF AMER-
ICA, AFL-CIO, AND ITS AGENT JAMES M. LEONARD,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
United Brotherhood of Carpenters & Joiners of America, Local
Union No. 978, AFL-CIO; International Hod Carriers , Build-
ing & Common Laborers Union of America , Local No. 676, AFL-
CIO; International Union of Operating Engineers , Hoisting and
Portable Local No. 16-16B , AFL-CIO; United Association of
Journeymen & Apprentices of the Plumbing and Pipefitting
Industry of the U. S. & Canada , Local No. 178 , AFL-CIO and
Kenneth Markwell and William Hartz, Partners , d/b/a Mark-
well & Hartz Contractors . Case No. 17-CD-25. April 05, 1958
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of
Section 8 (b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practice shall have
arisen. . . ."
On October 4, 1957, Markwell & Hartz Contractors, herein referred
to as the Company, filed charges with the Regional Director for the
Seventeenth Region, alleging that United Brotherhood of Carpenters
R Joiners of America, Local Union No. 978, AFL-CIO, herein called
the Carpenters; International Hod Carriers, Building & Common
Laborers Union of America, Local No. 676, AFL-CIO, herein called
the Laborers; International Union of Operating Engineers, Hoisting
120 NLRB No. 77.