The Columbus Building & Construction Trades Council

National Labor Relations Board - Board Decisions

Oct 23, 1964

149 N.L.R.B. 82 (N.L.R.B. 1964)

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commenced and carried on by the Council. In the absence of any evi-
dence to show that the Council was aware of these individual requests
by the Bricklayers and the Laborers, or during the course of the
picketing adopted or ratified these requests as a goal to be achieved
through the picketing, we likewise are of the opinion that the desires
of the two Locals cannot be imputed or assessed against the Council
which was conducting the picketing. Based on the entire record, we
find that the facts herein do not present a jurisdictional dispute with-
in the purview of Sections 8(b) (4) (D) and 10(k) of the Act. We
shall therefore quash the notice of hearing.
[The Board quashed the notice of hearing.]
The Columbus Building and Construction Trades Council, AFL-
CIO and Merchandise Properties, Inc.
Operative Plasterers ' and Cement Masons' International Asso-
ciation of the United States and Canada, Local No. 49, AFL-
CIO and Merchandise Properties, Inc.
International Association of Bridge , Structural and Ornamental
Iron Workers, Local No. 172, AFL-CIO and Merchandise
Properties, Inc.
United Brotherhood of Carpenters and Joiners of America, Local
Union No. 200 , AFL-CIO and Merchandise Properties, Inc.
International Brotherhood of Electrical Workers, Local Union
No. 683 , AFL-CIO and Merchandise Properties , Inc. Cases
Nos. 9-CC-337-1, 9-CC-337-3, 9-CC-337-41, 9-CC-337-5, and
9-CC-337-6. October 23, 1964
DECISION AND ORDER
On March 10, 1964, Trial Examiner James P. Webster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. He further found that the Respondents had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, the Respondent and the General Counsel filed exceptions to the
Trial Examiner's Decision and supporting briefs.
149 NLRB No. 13.
COLUMBUS BUILDING & CONSTRUCTION TRADES COUNCIL 83
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 McCulloch and Mem-
bers Fanning and Jenkins].
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 Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner, to the extent consistent with the
modifications noted below.
The Trial Examiner concluded that the Respondents, by picketing
and also by certain inducements and threats made by their agents,
violated Section 8(b) (4) (i) and (ii) (B), in that an object of such
conduct was to force certain of the union subcontractors working at
the jobsite to cease doing business with Merchandise Properties, the
general contractor, and with the nonunion subcontractors, and to
force the general contractor to cease doing business with the nonunion
subcontractors. He further found that the Respondents violated Sec-
tion 8 (b) (4) (A), since an additional object of their conduct was to
obtain a subcontracting clause prohibited by Section 8(e).
With respect to this latter conclusion, the Trial Examiner, follow-
ing the Board's decision in Construction, Production c6 Maintenance
Laborers Union Local 383 AFL-CIO, et. al. (Colson and Stevens
Construction Co. Inc.), 137 NLRB 1650, and certain subsequent
cases, held that the construction industry proviso to Section 8(e) ap-
plied only to voluntary agreements and did not permit the use of
coercive conduct to obtain such agreements. Upon reexamination of
the Colson and Stevens doctrine, the Board recently overruled that
doctrine and held that a labor organization does not violate Section
8 (b) (4) (A) by such conduct in seeking to obtain subcontracting
clauses encompassed within Section 8(e) but which are lawful un-
der the construction industry proviso thereto. Northeastern Indiana
Building and Construction Trades Council (Centlivre Village Apart-
ments), 148 NLRB No. 93. We find, therefore, contrary to the Trial
Examiner, that Respondents' conduct which was designed to obtain a
subcontracting clause within the construction industry proviso to Sec-
tion 8 (e) did not violate Section 8 (b) (4) (A).
' In the absence of exceptions to the Trial Examiner's conclusion that no violation re-
sulted from the statements of Roy Reed, assistant business agent of Respondent Car-
penters Local No. 200, to William Sheets, job superintendent for Werner Construction
Company, we adopt his conclusion pro forma.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We agree with the Trial Examiner that Respondents violated Sec-
tion 8 (b) (4) (B) by their conduct described in his Decision.2 In our
decision in Centlivre, supra, we held that picketing by a union in the
construction industry which had as an object the interruption of
business relations between an identified subcontractor with whom the
union has a primary labor dispute and a general contractor, neutral
to that dispute, violates Section 8(b) (4) (B), notwithstanding the
fact that the picketing may have had a concurrent lawful object of
securing a lawful "hot cargo" clause which would prohibit the future
establishment of such business relations. Our holding there is fully
applicable to the instant case and supports the Trial Examiner's find-
ing that the Respondents violated Section 8(b) (4) (13).
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that Re-
spondents, The Columbus Building and Construction Trades Coun-
cil, AFL-CIO; Operative Plasterers' and Cement Masons' Interna-
tional Association of the United States and Canada, Local No. 49,
AFL-CIO; International Association of Bridge, Structural and Or-
namental Iron Workers, Local No. 172, AFL-( 10; United Brother-
hood of Carpenters and Joiners of America, Local Union No. 200,
AFL-CIO; and International Brotherhood of Electrical Workers,
Local Union No. 683, AFL-CIO, their officers, representatives, and
agents, shall :
1. Cease and desist from :
(a) Engaging in or inducing or encouraging any individual em-
ployed by Werner Construction Company, or Childs Construction
Company, their subcontractors, or any other employer, to engage in
a strike, or a refusal in the course of his employment to use or handle
any materials or to perform any services, where an object thereof is
to force or require any of said employers or any other person to cease
doing business with Merchandise Properties, Inc.
(b) Threatening, coercing, or restraining Merchandise Properties,
Inc., its subcontractors, or any other employer, where an object there-
of is to force or require any of said employers or any other person to
cease doing business with Pence Electric Company, Accurate Glass
and Mirror Company, G. E. Berry, Inc., or Ray J. Cherubini.
'As the issue of the business relationship between the union subcontractors and the
nonunion subcontractors does not appear to have been fully litigated , and since the Trial
Examiner 's conclusion that one of the Respondents ' objects was to force a cessation of
business between the two groups is not necessary to our Decision herein, we do not adopt
that portion of the Trial Examiner's conclusions.
COLUMBUS BUILDING & CONSTRUCTION TRADES COUNCIL 85
2. Take the following affirmative action which it is found will ef-
fectuate the policies of the Act :
(a) Post in conspicuous places at their business offices and meeting
halls, including all places where notices to members are customarily
posted, copies of the attached notice marked "Appendix." 3 Copies of
said notice, to be furnished by the Regional Director for Region 9,
shall, after being duly signed by Respondents' authorized representa-
tives, be posted by Respondents immediately upon receipt thereof,
and be maintained by them for 60 consecutive days. Reasonable steps
shall be taken by Respondents to insure that such notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail copies of said notice to the Regional Director
for Region 9 for posting by Werner Construction Company, Childs
Construction Company, and Merchandise Properties, Inc., the Com-
panies willing, at all locations where notices to their employees are
customarily posted.
(c) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondents have taken to
comply herewith.
3In 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 , Enforcing an Order"
APPENDIX
NOTICE TO ALL MEMBERS OF THE COLUMBUS BUILDING AND CON-
STRUCTION TRADES COUNCIL, AFL-CIO; OPERATIVE PLASTERERS'
AND CEMENT MASONS' INTERNATIONAL ASSOCIATION OF THE UNITED
STATES AND CANADA, LOCAL No. 49, AFL-CIO; INTERNATIONAL
ASSOCIATION OF BRIDGE , STRUCTURAL AND ORNAMENTAL IRON WORK-
ERS, LOCAL No. 172, AFL-CIO; UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA, LOCAL UNION No. 200, AFL-
CIO; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL UNION No. 683, AFL-CIO
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 engage in, or induce or encourage any individual
employed by Werner Construction Company, or Childs Con-
struction Company, or their subcontractors, or any other em-
ployer, to engage in a strike or refusal in the course of his em-
ployment to use or handle any, materials, or to perform any
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
services where an object thereof is to force or require any of said
employers or any other person to cease doing business with Mer-
chandise Properties, Inc.
WE WILL NOT threaten, coerce, or restrain Merchandise Prop-
erties, Inc., its subcontractors, or any other employer, where an
object thereof is to force or require any of said employers or any
other person to cease doing business with Pence Electric Com-
pany, Accurate Glass and Mirror Company, G. E. Berry, Inc.,
or Ray J. Cherubini.
TilE COLUMBUS BUILDING AND CONSTRUCTION
TRADES COUNCIL AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
OPERATIVE PLASTERERS' AND CEMENT MASONS'
INTERNATIONAL ASSOCIATION OF TIIE UNITED
STATES AND CANADA, LOCAL No. 49, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
INTERNATIONAL ASSOCIATION of BRIDGE , STRUC-
TURAL AND ORNAMENTAL IRON WORKERS,
LOCAL No. 172, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, LOCAL UNION No. 200, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL UNION No. 683, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Information regarding the provisions of this notice and compliance
with its terms may be secured from the Ninth Regional Office of the
National Labor Relations Board, Room 2023, Federal Office Building,
550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200.
COLUMBUS BUILDING & CONSTRUCTION TRADES COUNCIL 87
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed October 25, 1963 , by Merchandise Properties , Inc., the
General Counsel for the National Labor Relations Board, by the Regional Director
for Region 9 (Cincinnati , Ohio), issued a complaint dated December 13, 1963,
against the several labor organizations named in the caption of this case. The
complaint alleges that these Respondent labor organizations have engaged in unfair
labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and
(ii)(B) and Section 2(6) and (7) of the National Labor Relations Act, as
amended (29 U.S.C. Sec. 151, et seq.).
Pursuant to appropriate notice, a hearing was held before Trial Examiner James
R. Webster , at Columbus, Ohio, on January 23, 1964. All parties were repre-
sented at and participated in the hearing, and were afforded the right to present
evidence , to examine and cross-examine witnesses , to offer oral argument, and to
file briefs.
Upon the entire record in this case, and from my observation of the witnesses,
the following findings of fact, conclusions of law, and recommendations are made.'
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
On September 13, 1963, Merchandise Properties , Inc., the Charging Party herein,
as a general contractor , contracted with nine subcontractors for the construction of
a warehouse on Joyce Avenue , in Columbus , Ohio. Five of these subcontractors
had written contracts or oral understanding with labor organizations , and the re-
maining four were "nonunion." The nonunion subcontractors-the primary em-
ployers who were the cause and object of the alleged unfair labor practices by the
Unions-were : Accurate Glass and Mirror Company; G. E. Berry, Inc.; Pence
Electric Company ; Ray J . Cherubini . The union subcontractors on this project
were: Howard S. Sterner Company; Werner Construction Company; Mooney and
Moses, Inc.; Capital City Excavating Company; and Queen City Railroad Con-
struction , Inc. These subcontractors along with the Charging Party were the
secondary employers against whom the alleged unfair labor practices of Respond-
ents were directed.
The said Joyce Avenue warehouse was scheduled to be completed within a
period of 12 months . Purchases by the nine subcontractors of material and sup-
plies to be used at this project will amount , within the said 12-month period, to a
sum in excess of $50 ,000, which material and supplies are to be shipped from
points outside the State of Ohio, directly to Columbus, Ohio.
In secondary boycott cases such as the incident matter , the Board will consider
the combined businesses of the primary and secondary employers in determining
whether jurisdiction should be asserted , although each of the nine above-named
primary and secondary employers individually do not meet any of the Board 's tests
for jurisdiction .' Since the combined direct inflow of these nine employers for the
Joyce Avenue project will exceed $50,000, in a 12-month period, this case falls
within the jurisdictional standard of the Board set forth in the Siemons Mailing
Service'
The parties also stipulated that Merchandise Properties , Inc., the Charging Party,
was formed in September 1963 for the sole purpose of constructing the warehouse
on Joyce Avenue in Columbus , Ohio, for the occupancy and use of Merchandise
Warehouse Company, Inc., an Ohio corporation engaged in warehouse operations
since 1927. The president of Merchandise Warehouse owns the majority of the
stock in both companies and also is an officer (secretary-treasurer ) of Merchandise
Properties . The vice president of Merchandise Warehouse is the president of Mer-
chandise Properties . The offices of the two companies are at the same address;
Merchandise Properties has no employees and uses the clerical staff of Merchan-
dise Warehouse . For the purposes of jurisdiction , these two companies constitute
one employer'
i Respondents made several motions to dismiss at the hearing on which rulings were
reserved The findings of fact, conclusions of law, and recommendations are depositive
of these motions.
2 The Light Co., Inc , 121 NLRB 221 ; W. H. Arthur Company, 115 NLRB 1137.
3 122 NIAtB 81.
4 Golding and Jones, Inc, et al, 144 NLRB 978; Wash Well No. 2, 139 NLRB 417.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties stipulated that during 1962 , Merchandise Warehouse received fees
and receipts in excess of $200,000 , for the storage of material and products , mainly
foods, and that such commodities were shipped directly in interstate commerce to
Columbus , Ohio, and that such commodities had a value in excess of $50,000, in
1962. I find that the Board has jurisdiction over this employer as a link or instru-
mentality of interstate commerce.`
It. THE LABOR ORGANIZATIONS INVOLVED
Based upon the pleadings , I find that Respondents are, and have been at all times
material to this case , labor organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondents' initial contact with the General Contractor
On October 9, 1963, Phil O'Day, secretary-treasurer of the Columbus Building
and Construction Trades Council, went to the Joyce Avenue site to talk with Rich-
ard Haas, vice president of Merchandise Properties , the general contractor. O'Day
showed Haas a list of the contractors on the job and asked Haas why he had not
contracted with union-approved contractors . Haas told him that he could not get
bids from some of these contractors and, in other cases , the bids from such union-
approved contractors were too high and unreasonable . O'Day mentioned to Haas
the four nonunion contractors on the job and told Haas that the Council and the
Electrical Workers Union had had trouble before with Pence Electric at other lo-
cations. O'Day said that he was not going to have any trouble at this project with
Pence being there , and he asked Haas to get only union contractors working at the
site. Haas told him that all contracts had been let and there would be suits for
damages if he broke them , but he would check with his attorneys . O'Day left but
returned the next day and gave Haas a copy of the anniversary issue of the Colum-
bus Building Trades Journal , marking and underlining on it the names of union-
approved contractors.
On October 21, 1963 , Fred Haering , president of the Columbus Building and
Construction Trades Council , and Ralph Hockman , business agent of the Brick-
layers' Union ( not one of the Respondents in the complaint issued herein ) went to
the warehouse project and talked with Haas. They told him that he had the book
from which he could have obtained union contractors , he did not do it , and that
was his responsibility . They said they were going to hold a meeting of the Trades
Council and its member unions and then it would be decided what would be done.
B. Picketing of the Joyce Avenue warehouse project
The complaint alleges that the picketing of the said warehouse contruction site on
October 23 and 24, 1963, with signs which read "Electricians on this job are not
members of L.U. No. 683, I .B.E.W.," at times when there were no electricians on
the job, constituted a violation of Section 8(b)(4)(i) aid (ii ) of the Act.
The Joyce Avenue warehouse construction job was picketed from 7 a.m., on
October 23, 1963, to approximately 4 p m., of that day and also from 7 to 10 a.m.,
on October 24, 1963. The picket appeared at the project's single entrance and exit
way. The picket sign contained this language: "The electricians on this job are not
members of L.U. No. 683, I.B.E.W."
In paragraphs 16 and 20 of Respondents' answer , the Respondents admit the
facts that they picketed October 23 to October 24, 1963, at 10 a.m., but denied, for
want of knowledge , that there were no electricians on the job , and deny illegality of
the conduct.
As to whether or not electricians were present on the job on October 23 or 24,
1963, the stipulation of the parties sets forth that Howard Pence , owner of Pence
Electric Co., was on the project during the last few days of September 1963, when
he erected overhead wiring on temporary poles in order that light bulbs might be
inserted for use should employers or other contractors work in the late evening
hours. Pence was again on the project between the hours of 6 p .m. and 9 p.m. on
October 21, 1963, when he installed a conduit under the floor of one warehouse
section . He was next scheduled to return to the jobsite on Monday, October 28,
1963.
5 H P 0 Service, Inc., 122 NLRB 394.
COLUMBUS BUILDING & CONSTRUCTION TRADES COUNCIL 89
The payroll records of Pence Electric Company show that for the week ending
October 26, 1963, there were no Pence Company employees on the Joyce Avenue
project and that there were no Pence Company employees on the Joyce Avenue
project since the payroll week ending October 5, 1963.
Arthur Lewis, the individual who carried the picket sign on October 23, 1963,
testified that on that date at about 7: 30 a.m. a truck came onto the property with
two men in it. Approximately 20 minutes later they came off the property in two
vehicles and one vehicle was towing an air compressor which had the name of the
Pence Electric Company on it. There is no evidence identifying these two men nor
the trucks that entered or left the property on that day.
All work at the Joyce Avenue project halted completely on October 23, 1963, and
did not resume until the picket was removed at about 10 a.m. on October 24, 1963,
after the General Contractor signed an agreement .that he would agree to contract
only with union contractors . Haas for the General Contractor then sent letters to
the four nonunion subcontractors telling them that he had to cancel the contracts
because of the labor trouble.
No representative of the Electrical Workers Union has contacted Pence Electric
Company regarding recognition or unionization of its employees at any time during
the past 2 or 3 years.
C. Statement by union representatives to employees
The complaint alleges several incidents of statements by representatives of Re-
spondents to individuals as constituting unfair labor practices within the meaning
of Section 8(b)(4)(i) of the Act.
1. Statement of Union Representative Kaylor to John Childs, an employee
of Childs Construction Company
John P . Kaylor is the business agent for Operative Plasterers ' and Cement Masons'
International Association of the United States and Canada , Local 49, AFL-CIO,
one of the Respondents herein.
John Childs is a member of the Cement Masons ' and Plasterers ' Union , and was
an employee of a cement finishing firm owned by his sister, being the Childs Con-
struction Company, which company had a subcontract with Werner to do cement
work on the Joyce Avenue project.
The day before the picket was placed on the project involved , Childs called Kay-
lor, and Kaylor told him that it was _ not the policy to go through the picket line.
The next day Childs called Kaylor again and asked him what would happen if
he went through the picket line, and Kaylor said to him he could be fined
up to $50 . It was also stipulated that Kaylor told Childs that union members do
not cross picket lines.
2. Statement of Union Representative Morrison to Billy Purcell, an
employee of Werner
Ralph Morrison is the business agent for Local 172 , International Association of
Bridge, Structural , and Ornamental Iron Workers , AFL-CIO , one of the Respond-
ents herein.
Purcell , an employee of Werner and a member of Local 172, Iron Workers
Union , reported for work on October 23, 1963 . He observed -the picket and im-
mediately telephoned Ralph Morrison , business agent of his union, and told him
that a "banner" was there . Morrison asked him if he was working and Purcell
replied that he was not. Morrison then told him that he could not tell Purcell not
to work, that that was entirely up to him, but the procedure had 'always been that
union members do not cross the picket line.
3. Statement of Union Representative Reed to William Sheets,
job superintendent for Werner Company
Roy Reed is the assistant business agent of Local No. 200, United Brotherhood
of Carpenters and Joiners of America , AFL-CIO.
William Sheets , job superintendent for Werner Construction Company, was in
charge of all of Werner 's employees on the Joyce Avenue project , which were ap-
proximately 25 to 30 in number , including a foreman , carpenters , iron workers, and
several other crafts and trades . He holds a union card with Local No. 200 of the
Carpenters Union.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 23, 1963, Sheets saw the picket on the project when he reported for
work and he telephoned Assistant Business Agent Reed about the matter. Sheets
asked Reed if Werner carpenters , who were members of Local 200, would be fined
if they worked while the picket was there . Reed said he could not tell Sheets "one
way or the other" and that he would have to use his own judgment in telling the
carpenters what to do. Reet stated that it was up to Sheets to decide but that "a
union man would know what to do." Sheets related this conversation to the car-
penters and none of them went to work.
D. Statements of union representatives to employer representatives
The complaint alleges several incidents of statements by representatives of Re-
spondents to employer representatives as constituting unfair labor practices within
the meaning of Section 8(b) (4) (ii ) of the Act.
1. Statement of Council Representative O'Day to John E. Werner, Jr.
Phil O'Day is the secretary -treasurer of the Columbus Building and Construction
Trades Council, AFL-CIO.
The complaint alleges that on or about October 23, 1963, O'Day in a telephone
conversation stated to John E. Werner, Jr., vice president of Werner, that there
would be picketing at the warehouse construction site on the following morning
because the Charging Party had entered into contracts with nonunion contractors.
Respondents admit this allegation of the complaint , but contends that the conduct
alleged therein complies with Section 8 (e) of the Act.
2. Statement of Counsel Representative O'Day and Union Representative
Bricker to the General Contractor
Daniel Bricker is the business agent of Local No. 683, International Brother-
hood of Electrical Workers, AFL-CIO.
The complaint alleges that on or about October 24, 1963, O'Day and Bricker at
Respondent Council 's office told the Charging Party, the General Contractor, that
the picket line would be removed if the Charging Party would agree to contract
only with union contractors.
Respondents admit this allegation of the complaint but contends that the conduct
alleged therein complies with Section 8(e) of the Act.
On the evening of October 23 , 1963, Haas, vice president of the General Con-
tractor telephoned O'Day, secretary -treasurer of the Building Trades Council, and
asked that they meet to resolve the matter . O'Day told him to come to the Coun-
cil hall the following morning, Wednesday , October 24 . Haas went to the Council
hall the following morning. Present at this meeting on behalf of the Unions were
O'Day, Richard Liddil , Sr., president of Local 189 , Plumbers and Steamfitters
Union, Daniel Bricker and one other individual . The result of their talk was that
the Electrical Workers Union would remove the picket if Haas would agree to con-
tract only with union contractors . O'Day then typed an agreement which Haas
and O 'Day both signed . The wording of the agreement was as follows:
On the warehouse project at 1178 Joyce Avenue under my supervision I
hereby agree that all construction work will be done with construction labor
agreeable to affiliated local unions of the Columbus Building and Construction
Trades Council.
There will be no penalty as to work which has been performed or as to any
action which has been taken by any local union affiliated with the Council on
this project.
3. Statement of Council Representative O'Day to John Downey, president of
Columbus Terminal, Inc.
The General Counsel alleges in paragraph 7(b)(iv) of the complaint that on or
about October 25, 1963, O'Day telephoned John Downey, president of Columbus
Terminal Inc ., and told him that Respondents would picket the said warehouse con-
struction site again . Respondents admit this allegation but contend that this con-
duct complies with Section 8(e) of the Act.
John Downey, head of Columbus Terminal , Inc., a separate warehousing firm,
accompanied Haas to his meetings with the Council on October 24, 1963. Downey
wanted to learn the full story because he and other warehouse operators might be
faced with the same or similar union problems when they build their own ware-
COLUMBUS BUILDING & CONSTRUCTION TRADES COUNCIL 91
houses. On Friday, October 25, 1963, O'Day telephoned John Downey, telling him
that the Unions had received copies of the charges which were filed in this case.
O'Day told Downey "We'll picket out there on Joyce Avenue again if and when a
nonunion condition existed."
IV. CONCLUDING FINDINGS
A. Picketing
Regarding the picketing of the Joyce Avenue warehouse project on October 23,
and part of October 24, 1963, I find that the picketing was done at a time when
there were no electricians on the project, and none were scheduled to be on the
project at any time during that week. The record shows that someone removed
from the project site a compressor belonging to Pence Electric Company on the
morning of October 23, but these persons are not identified as being employees of
Pence Electric Company, and further the testimony shows that these two men were
on the project only about 20 minutes on that date.
I find that the picketing herein violated a Moore Dry Dock standard in that at the
time of the picketing, the primary employer (Pence Electric Company) was not en-
gaged in his normal business at the common situs, although at the time Pence Elec-
tric had materials stored on the project. There was not a temporary or intermittent
interruption of the work of Pence Electric Company as would bring the case
within the situations found to exist in the Brownfield Electric, Inc., case and in the
Power Wire and Electric Corp., case.' I base these conclusions on the facts that
there have been no employees of Pence Electric Company on the project since the
week ending October 5, 1963, and none were scheduled to work until October 28,
1963, with the exception of 3 hours of work on October 21, 1963, when a conduit was
installed under the floor of one warehouse section. Also, as will appear herein-
after, there was other evidence that the picketing was actually aimed at achieving
unlawful secondary objectives.
The picketing herein constituted "inducement or encouragement" of individuals
within the meaning of Section 8(b)(4)(i) of the Act and "coercion or restraint" of
employers within the meaning of 8(b) (4) (ii) of the Act.'
The record is silent as to whether or not any employees or other personnel of
Howard S. Sterner Company, Mooney and Moses, Inc., Capital City Excavating Co.,
Queen City Railroad Construction, Inc., Accurate Glass and Mirror Company, G.
E. Berry, Inc., and Ray J. Cherubini were on the Joyce Avenue warehouse project
on October 23 or 24, 1963, or whether they were scheduled to be on the project
during that week. The allegations of paragraph 7(a) of the complaint are not sus-
tained by any evidence that by picketing or other conduct have the Respondents in-
duced or encouraged employees of these employers to cease work.
B. Statements of union representatives to employees
I find that the statements of Kaylor to Childs on October 22 and the statement
of Morrison to Purcell constituted inducement and encouragement of individuals to
refuse to work within the meaning of Section 8(b)(4)(i) of the Act.
As to the statement by Reed to Sheets, superintendent on the project for Werner
Construction Company, I conclude from the evidence that Sheets is more nearly
related to the managerial level than to the rank-and-file employee, and is not an
"individual employed by any person," within the meaning of Section 8(b) (4) (i) of
the Act' Also, I do not consider the statement of Reed to Sheets to constitute a
threat as would fall within the proscriptions of Section 8(b)(4)(ii).
C. Statements of union representatives to employer representatives
Regarding the statements of union representatives to John Werner of Werner
Construction Company and to Haas of Merchandise Properties, I find that these
statements constituted threats to picket the project because Merchandise Properties
U Moore Dry Dock Company, 92 NLRB 547; Bi ownfield Electric, Inc., 145 NLRB 1163;
New Power Wire and Electric Corp , et at , 144 NLRB 1089. Other standards of Moore
Dry Dock went complied with, I e., the picketing Is limited to places reasonably close to
the Silas and the picketing discloses clearly that the dispute is with the electrical
contractor.
Y Gilmore Construction Company, 127 NLRB 541.
8 Carolina Lumber Company, 130 NLRB 1438; Servette, Inc., 133 NLRB 1501, reversed
and remanded 310 F. 2d 659 (C.A. 9) ; C. P. Sheaffer and Sons, 136 NLRB 968.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had entered into contracts with nonunion contractors, and threats that the picket
line would not be removed unless Merchandise Properties would agree to contract
only with union contractors.'
Regarding the statements made by O'Day to Downey, there is no evidence that
Downey was an agent or representative of any of the employers involved herein; I
do not believe that a statement made to a third party, even with reasonable expecta-
tion that it would be relayed to an employer involved, could constitute a "threat,
coercion, or restraint" of one of the employers involved on the project. Further-
more, the statement to Downey was vague and indefinite; the threat to picket the
Joyce Avenue project "if and when a nonunion condition existed" does not neces-
sarily convey a threat to picket for an illegal purpose.
There is no evidence in the record to sustain the allegations in paragraph 7(b) of
the complaint that the Respondents threatened, coerced, or restrained Accurate
Glass and Mirror Company, G. E. Berry, Inc., Ray J. Cherubini, Howard S. Sterner
Company, Mooney and Moses, Inc., Capital City Excavating, Inc., or Queen City
Railroad Construction, Inc.
D. Object of picketing
Based on the facts that Pence Electric Company was not engaged in its normal
business at the project at the time of the picketing, and no demand had been made
by the Electrical Union or the Council of Pence for several years, that demands
were made on the General Contractor to deal only with union contractors, and that
the picketing was discontinued when an agreement to use only union contractors
was signed by the General Contractor, I find that the object of the picketing was
to force certain secondary employers named herein to cease doing business with the
General Contractor and with the nonunion subcontractors, and to force the Gen-
eral Contractor to cease doing business with the nonunion subcontractors.
I find also that an object of the picketing was to force or require the General
Contractor to enter into an agreement to contract only with contractors agreeable
to affiliated local unions of the Columbus Building & Construction Trades Council,
as alleged in paragraph 8(b) of the complaint.
Respondents assert that their conduct complied with Section 8(e) of the Act.
However, the exception in Section 8(e) pertaining to the construction industry ap-
plies only to voluntary agreements . To force an employer in the construction in-
dustry by means of secondary boycott conduct, as in this case, to enter into an
agreement whereby he ceases to do business with any other employer or class of
employers constitutes a violation of Section 8(b) (4) (i) and (ii) (A) as well as
(B).'*
E. Liability of Respondents
I find that each of the Respondent Unions and the Respondent Council were act-
ing in concert and for a common objective. All conduct complained of as a viola-
tion of the Act was calculated to serve that common objective. I find that all Re-
spondent Unions and Respondent Council are jointly and severally liable for all of
said conduct"
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents as set forth in section III, above, occurring in con-
nection with the operations of the Employers named above in section I, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States and tend to lead to labor disputes obstructing commerce and the free flow of
commerce.
° Apartment Buildinq Realty Trust, 130 NLRB 1120
10 Fiesta Pools, Inc ., et al., 145 NLRB 911 ; and Building Contractors Association of
New Jersey , 145 NLRB 952 Neither the charge nor the complaint specified that the con-
duct complained of cane within the proscriptions of subsection ( A) of Section 8(b) (4) ;
however , paragraph 8(b) of the complaint alleges that an object of the alleged conduct
was to force or require the General Contractor to contract only with employers employ-
ing individuals who were members of or represented by labor organizations affiliated with
Respondent Council. Evidence was adduced on this Issue and It was fully argued and
litigated.
11 Cisco Construction Company, 114 NLRB 27. The Respondents admit and I find that
each of the union representatives involved herein-Phil O'Day, John P. Kaylor, Ralph
Morrison, Roy Reed, and Daniel Bricker-were agents of their respective labor organiza-
tions within the meaning of Section 2 (13) of the Act.
COLUMBUS BUILDING & CONSTRUCTION TRADES COUNCIL 93
VI. THE REMEDY
Having found the Respondents, jointly and severally, have engaged in activities
violative of Section 8(b) (4) (i) and (ii) (A) and (B) of the Act, I recommend that
they cease and desist therefrom, and take certain affirmative action designed to ef-
fectuate the policies of the Act.
Upon the basis of the above findings of facts, and upon the entire record in the
case I make the following:
CONCLUSIONS OF LAW
1. Merchandise Properties, Inc., Accurate Glass and Mirror Company, G. E.
Berry, Inc., Pence Electric Company, Ray J. Cherubini, Howard S. Sterner Com-
pany, Werner Construction Company, Mooney and Moses , Inc., Capital City Exca-
vating Company, Queen City Railroad Construction, Inc., and Childs Construction
Company are employers within the meaning of Section 2(2) of the Act, and are
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Columbus Building and Construction Trades Council, AFL-CIO; Opera-
tive Plasterers' and Cement Masons' International Association of the United States
and Canada, Local No. 49, AFL-CIO; International Association of Bridge, Struc-
tural and Ornamental Iron Workers, Local No. 172, AFL-CIO; United Brother-
hood of Carpenters and Joiners of America, Local No. 200, AFL-CIO; and Inter-
national Brotherhood of Electrical Workers, Local Union No. 683, AFL-CIO, are
labor organizations within the meaning of Section 2(5) of the Act.
3. By picketing Merchandise Properties, Inc., Werner Construction Company
and Childs Construction Company at the Joyce Avenue Warehouse project with
an object of forcing or requiring said Employers to cease doing business with
Pence Electric Company, Accurate Glass and Mirror Company, G. E. Berry,
Inc., and Ray J. Cherubini, Respondents have engaged in unfair labor prac-
tices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act.
4. By picketing Merchandise Properties, Inc., Werner Construction Company, and
Childs Construction Company at the Joyce Avenue Warehouse project with an
object of forcing or requiring Merchandise Properties, Inc., to enter into an agree-
ment which is prohibited by Section 8(e) of the Act, Respondents have engaged in
unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (A) of the
Act.
5. By inducing and encouraging employees of Childs Construction Company and
of Werner Construction Company to engage in a strike with an object of forcing or
requiring their employers to cease doing business with Pence Electric Company,
Accurate Glass and Mirror Company, G. E. Berry, Inc., Ray J. Cherubini, and
Merchandise Properties, Inc., Respondents have engaged in unfair labor practices
within the meaning of Section 8(b) (4) (i) (B) of the Act, and by engaging in this
conduct for the purpose of forcing or requiring Merchandise Properties, Inc., to
enter into an agreement which is prohibited by Section 8(e) of the Act. Respond-
ents have engaged in unfair labor practices within the meaning of Section 8(b) (4)
(i) (A) of the Act.
6. By threatening, coercing, and restraining Werner Construction Company and
Merchandise Properties, Inc., with an object of forcing or requiring said employers
to cease doing business with Pence Electric Company, Accurate Glass and Mirror
Company, G. E. Berry, Inc., and Ray J. Cherubini, Respondents have engaged in
unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act,
and by engaging in this conduct for the purpose of forcing or requiring Merchan-
dise Properties, Inc., to enter into an agreement which is prohibited by Section 8(e)
of the Act, Respondents have engaged in unfair labor practices within the meaning
of Section 8(b) (4) (ii) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The Respondents have not induced or encouraged the employees of Howard
S. Sterner Company, Mooney and Moses, Inc., Capital City Excavating Company,
Queen City Railroad Construction, Inc., Accurate-Glass and Mirror Company, G.
E. Berry, Inc., and Ray J. Cherubini to engage in a strike or a refusal in the course
of their employment to perform services, nor have Respondents threatened. coerced,
or restrained said Employers.
[Recommended Order omitted from publication.]