Wyoming Valley Building & Construction Trades Council

National Labor Relations Board - Board Decisions

Jun 25, 1974

211 N.L.R.B. 1049 (N.L.R.B. 1974)

WYOMING VALLEY BLDG. & CONSTR. TRADES COUNCIL
Wyoming Valley Building & Construction Trades
Council and Altemose Wilkes-Barre Corp. and J.
Rose Corp. t/a Altemose Construction Associates
Cement Finishers, Local 150 and Altemose Wilkes-
Barre Corp . and J . Rose Corp. t/a Altemose
Construction Associates
International Union of Operating Engineers Local 542
and Altemose Wilkes-Barre Corp . and J. Rose
Corp . t/a Altemose Construction Associates. Cases
4-CP-214, 4-CC-777, and 4-CC-778
June 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 29, 1974, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and supporting briefs, General Counsel filed cross-
exceptions and a supporting brief, and the Charging
Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Wyoming Valley Building &
Construction Trades Council, Wilkes-Barre, Pennsyl-
vania, its officers, agents, and representatives, shall:
1. Cease and desist from picketing or causing to
be picketed Altemose Wilkes-Barre Corp. and J.
Rose Corp. t/a Altemose Construction Associates,
where an object thereof is forcing or requiring such
' To remedy the violations found the Administrative Law Judge
recommended that the Respondent Council and Respondent Local 150 be
ordered to post the appropriate notices . The General Counsel contends that
such posting would be insufficient , standing alone, to allow members an
adequate means of receiving the information contained therein . We find
merit in the General Counsel's contention in that neither Respondent
Council nor Respondent Local 150 has a regular place in which to post such
notices as a means of communicating with members. Accordingly, we shall
order Respondent Council to post the notice at the business offices , meeting
halls, and all places where the Respondent Council and the various
affiliated Locals customarily post notices. Since the business of Respondent
Local 150 is conducted from the home of its business agent, Albert Stush,
we shall order that Respondent Local 150 mail copies of the appropriate
notice to each of its members . We also find merit in the General Counsel's
1049
employer to recognize or bargain with Respondent
and its affiliated labor organizations as the collec-
tive-bargaining representative of its employees, or
forcing or requiring employees of such employer to
accept or select Respondent and its affiliated labor
organizations as their collective-bargaining repre-
sentatives at a time when Respondent and its
affiliated labor organizations are not certified as such
representative and where said picketing has been
conducted without a petition under Section 9(c)
being filed within a reasonable period of time not to
exceed 30 days from the commencement of said
picketing.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous places at the offices and
meeting halls of Respondent Council, and of all
locals affiliated with Respondent Council, and at all
places where Respondent Council and its locals
customarily post notices, copies of the attached
notice marked "Appendix A." 2 Copies of said notice,
on forms provided by the Regional Director for
Region 4, after being duly signed by the authorized
representative of the Respondent, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaft-
er, in conspicuous places, as prescribed above.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Furnish to the Regional Director for Region 4
signed copies of said notice for posting by Altemose
Wilkes-Barre Corp. and J. Rose Corp. t/a Altemose
Construction Associates, if willing, in places where
notices to employees are customarily posted.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
B. -Respondent Cement Finishers, Local 150,
Wilkes-Barre , Pennsylvania, its officers, agents, and
representatives, shall:
1. Cease and desist from threatening, coercing, or
restraining Superior Certified Concrete or Shawnee
Ready Mix Concrete, or any other person, where an
contention that Respondent Local 150 and Respondent Local 542 should be
ordered to cease and desist from enmeshing neutrals, other than those
specified in the recommended Order, in their dispute with the Charging
Party, and we shall so order. We find no merit in General Counsel's
contention that the order against Respondent Local 542 should be
broadened to protect other primaries as well as the Charging Party because
a proclivity to violate the Act in this regard has not been sufficiently
established.
2 In the event that this 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
211 NLRB No. 154
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
object thereof is to force or require Superior Certified
Concrete, or Shawnee Ready Mix Concrete, or any
other person, to cease doing business with Altemose
Wilkes-Barre Corp. and J. Rose Corp. t/a Altemose
Construction Associates.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Mail copies of the attached notice marked
"Appendix B" to each of its members and post
copies of said notice in conspicuous places in its
business offices, meeting halls, and all places where
notices to members are customarily posted.3 Copies
of such notices, on forms provided by the Regional
Director for Region 4, after being duly signed by the
authorized representative of the Respondent, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to its members are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Furnish to the Regional Director for Region 4
signed copies of said notice for posting by Superior
Certified Concrete, Shawnee Ready Mix Concrete,
and Altemose Wilkes-Barre Corp. and J. Rose Corp.
t/a Altemose Construction Associates, if any such
employer be willing, in places where notices to its
employees are customarily posted.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
C. Respondent International Union of Operating
Engineers Local 542, Wilkes-Barre, Pennsylvania, its
officers, agents, and representatives, shall:
1. Cease and desist from inducing or encouraging
any individual employed by Coon Certified Con-
crete, Inc., to refuse to work or to perform any
services in the course of his employment; and from
threatening, coercing or restraining Coon Certified
Concrete, Inc., or any other person, where, in either
case, an object thereof is to force or require Coon
Certified Concrete, Inc., or any other person, to
cease doing business with Altemose Wilkes-Barre
Corp. and J. Rose Corp. t/a Altemose Construction
Associates.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business office copies of the attached
notice marked "Appendix C." 4 Copies of said notice,
on forms provided by the Regional Director for
Region 4, after being duly signed by the authorized
representative of the Respondent, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to members are customarily posted. Reasona-
ble steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Furnish to the Regional Director for Region 4
signed copies of said notice for posting by Coon
Certified Concrete, Inc., and Altemose Wilkes-Barre
Corp. and J. Rose Corp. t/a Altemose Construction
Associates, if any such employer be willing, in places
where notices to its employees are customarily
posted.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 See M . 2, supra.
4 See fn . 2, supra.
APPENDIX A
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket or cause to be picketed
Altemose Wilkes-Barre Corp. and J. Rose Corp.
t/a Altemose Construction Associates, with an
object of forcing or requiring such employer to
recognize and bargain with us and our affiliated
local unions as the representatives of such
employer's employees, or forcing or requiring
such employees to accept or select us and our
affiliated local unions as their collective-bargain-
ing representatives, where such picketing has been
conducted without a petition under Section 9(c)
of the Act being filed within a reasonable period
of time not exceeding 30 days from the com-
mencement of such picketing.
WYOMING VALLEY
BUILDING AND
CONSTRUCTION TRADES
COUNCIL
(Labor Organization)
Dated By
(Representative) (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 compli-
ance with its provisions may be directed to the
WYOMING VALLEY BLDG. & CONSTR. TRADES COUNCIL
Board ' s Office , William J. Green , Jr., Federal
Building , 600 Arch Street , Suite 4400 , Philadelphia,
Pennsylvania 19106, Telephone 215-597-7601.
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten, coerce, or restrain
Superior Certified Concrete, or Shawnee Ready
Mix Concrete, or any other person, with an object
of forcing or requiring any such employer to cease
doing business with Altemose Wilkes-Barre Corp.
and J. Rose Corp. t/a Altemose Construction
Associates.
CEMENT FINISHERS,
LOCAL 150
(Labor Organization)
Dated By
(Representative) (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 compli-
ance with its provisions may be directed to the
Board's Office, William J. Green, Jr., Federal
Building, 600 Arch Street, Suite 4400, Philadelphia,
Pennsylvania 19106, Telephone 215-597-7601..
APPENDIX C
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any individ-
ual employed by Coon Certified Concrete, Inc., to
refuse to work or to render services in the course
of his employment , nor will we threaten , coerce,
or restrain Coon Certified Concrete, Inc., or any
other person where , in either case, an object
thereof is to force or require Coon Certified
Concrete , Inc., or any other person , to cease
doing business with Altemose Wilkes-Barre Corp.
and J. Rose Corp. t/a Altemose Construction
Associates.
1051
INTERNATIONAL UNION
OF OPERATING
ENGINEERS LOCAL 542
(Labor Organization)
Dated By
(Representative) (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 compli-
ance with its provisions may be directed to the
Board's Office, William J. Green, Jr., Federal
Building, 600 Arch Street, Suite 4400 , Philadelphia,
Pennsylvania 19106, Telephone 215-597-7601.
DECISION
STATEMENT OF THE CASE
JoHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on January 8, 9, and 10 , 1973, at
Wilkes-Barre , Pennsylvania on a consolidated complaint
and notice of hearing issued by the Regional Director for
Region 4 of the National Labor Relations Board on
November 20, 1963, and served by registered mail the same
day against Wyoming Valley Building & Construction
Trades Council (hereinafter sometimes referred to as the
Council or Respondent Council), Cement Finishers, Local
150 (hereinafter sometimes referred to as Cement Finishers
or Respondent Cement Finishers) and International Union
of Operating Engineers , Local 542 (hereinafter sometimes
referred to as Operating Engineers or Respondent Operat-
ing Engineers). The complaint proceeded from charges
filed by Altemose Wilkes-Bane Corp . and J. Rose Corp.
't./a Altemose Construction Associates, hereinafter some-
times referred to as the Charging Party or, collectively, as
Altemose. The charge in Case 4-CP-214 was filed on
October 18, 1973, and the charges in Cases 4-CC-777 and
4-CC-778 were filed on October 16, 1973 . All charges were
served by registered mail on the dates filed.
The complaint, which was amended at the close of the
hearing to conform with certain particulars of the proof
alleges that Respondent Council engaged in picketing for
proscribed objectives in violation of Section 8(b)(7)(C) of
the Act. In its answer, Respondent Council denied that it is
a labor organization within the meaning of the Act and
also denied that it committed any unfair labor practices.
For reasons which appear hereinafter I find and conclude
that Respondent Council is a labor organization within the
meaning of the Act and that it engaged in unfair labor
practices as alleged in the complaint.
The complaint further alleged that Respondent Cement
Finishers and Operating Engineers seperately committed
certain violations of Section 8(b)(4)(B) of the Act. In their
answers, these Respondents denied the commission of any
unfair labor practices. For reasons , which also appear
hereinafter , I find that the Cement Finishers and the
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Operating Engineers engaged in the unfair labor practices
alleged in the complaint.
At the hearing all parties were represented by counsel
and were given full opportunity to examine and cross-
examine witnesses, to introduce evidence, and to file briefs.
All parties waived the opportunity to make closing
arguments . Briefs have subsequently been filed by the
General Counsel, by Respondent Council and Respondent
Cement Finishers, by Respondent Operating Engineers
and by the Charging Party and have been duly considered.
Upon the entire record 1 in the case including the briefs
and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
Altemose Wilkes-Barre Corp. and J. Rose Corp. t/a
Altemose Construction Associates, at times pertinent
hereto, had their principal offices on Mundy Street (or
New Mundy Street) in Wilkes-Barre Township, Pennsylva-
nia, where they with their employees were engaged from
about June 10, 1973, at least until the hearing in early
January 1974 as a general contractor in the construction of
a showroom-warehouse for Mall Associates. This project
has a total cost in excess of $600,000 and goods from
outside the Commonwealth of Pennsylvania, purchased by
Altemose Construction Associates and having a value in
excess of $50,000, have been brought directly to the
construction site.
On these facts, I find that Altemose Associates is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that it will
effectuate the policies of the Act for the Board to assert
jurisdiction herein.
Superior Certified and Shawnee Ready Mix Concrete are
companies which are both owned by James J. Ruggere and
are engaged in the concrete business in and around Wilkes-
Bane Township, Pennsylvania.
In connection with these activities both these companies,
through Ruggere, agreed to supply concrete or supplied
concrete to Altemose from their respective plants.
Coon Certified Concrete, Inc., is also engaged in the
concrete business-ini Wilkes-Barre Township, Pennsylvania,
and also Jagreed I to, Iandi did,j supply concrete to Altemose
from its plant.
Based on the foregoing and the unfair labor practices,
found infra, involving work done or agreed to be done by
these companies for Altemose at its Mundy Street project,
I find that Superior Certified Concrete, Shawnee Ready
Mix Concrete and Coon Certified Concrete, Inc., are
persons engaged in an industry affecting commerce within
the meaning of Sections 2(11), 2(7), and 8(b)(4)(B) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED AND THEIR
AGENTS
The complaint alleges, Respondent Cement Finishers'
I Pursuant to the stipulation of the parties, received after the close of the
hearing and hereby approved by me, the record is corrected.
answer admits, and I find, that Respondent Cement
Finishers is a labor organization within the meaning of the
Act.
The complaint alleges , Respondent Cement Finishers'
answer admits, and I find, that Albert M. "Al" Stush has
been the business agent of Respondent Cement Finishers
at all times material herein.
The complaint alleges, Respondent Operating Engineers'
answer admits, and I find, that Respondent Operating
Engineers is a labor organization within the meaning of the
Act.
The complaint alleges, Respondent Operating Engineers'
answer admits, and I find, that Robert Cahill has been a
business agent of Respondent Operating Engineers and has
acted as such.
The complaint further alleges, the answers admit, and I
find, that Respondent Council is, and has been at all times
material herein, an unincorporated association composed
of affiliated labor organizations in the building and
construction industry (including Respondent Cement
Finishers and Respondent Operating Engineers).
The complaint also alleges, but the answers deny, that
Respondent Council is a labor organization within the
meaning of the Act and that Henry Depolo was its agent
within the meaning of Sections 2(13)and 8(b) of the Act at
all pertinent times herein.
I will take up first the question of Depolo's agent status.
Depolo is regularly employed as, and is admittedly, the
business agent or business manager of Laborers' Local 215
which is also a member union of Respondent Council.
Depolo works at the office of Local 215 which is in a
building at 501 E. Main Street in Wilkes-Barre, Pennsylva-
nia. The Council does not have an office but uses the office
of Depolo and his telephone.
Depolo is also the secretary-treasurer of the Council. On
stationery which has been used by the Council at times
pertinent hereto he is listed as the Council's secretary and
his is the only telephone number which appears on the
letterhead.
As secretary-treasurer of the Council, Depolo is required
to, and does, sign financial statements which are filed by
the Council with the Secretary of Labor each year pursuant
to the provisions of the Labor Management Reporting and
Disclosure Act of 1959. He, along with the Council's
president, Sutcavage, signs the Council's checks.
Particularly significant in this case was Depolo's role in
connection with the picketing of the Altemose site on
Mundy Street, which picketing is alleged to be a violation
of Section 8(b)(7) of the Act. As will be discussed more
fully hereinafter, Depolo participated in the Council
meeting at which the picket line was authorized and at
which arrangements were made for the participation of
pickets who were members of the Council's constitutent
local unions. Thereafter Depolo paid these pickets at the
rate of $15 per day-sometimes out of his own pocket
-based on their vouchers submitted to him and he has
been reimbursed for these expenditures by the Council
with moneys contributed to the Council by its constituent
local unions. He and Stucavage are in fact authorized to
WYOMING VALLEY BLDG. & CONSTR. TRADES COUNCIL 1053
make payments or sign checks in behalf of the Council at
times between Council meetings even though there had
been no Council meetings to ratify these expenditures for
the 6 months or so proceeding the hearing, as Depolo
testified.
Further indicating the role of Depolo as the Council's
focal point for the handling and disposition of matters in
connection with the Council's picketing of Altemose is the
fact the pickets told an Altemose official that, if the latter
had any questions about the picketing, he should call
Depolo-and the additional fact, of which more will be
said hereinafter, that it was Depolo who met with Edward
C. Wideman, III, an official of Altemose, in August 1973 in
an effort to persuade Wideman to operate the
Altemose project on a 100-percent union basis. In speaking
to Wideman on this matter Depolo was obviously acting in
his role as Council secretary-treasurer since many of the
jobs to be performed at the Altemose site, whose
incumbent employees Depolo sought to unionize, fell
outside the jurisdiction of the Laborers Union of which he
is the business agent. Hence, if unionized, these employees
would have to be received not only into the Laborers'
union but other constituent trade unions of the Council as
well.
Depolo admitted he is the officer of the Council
responsible for keeping the Council's books and his
personal secretary carries out this function by his delega-
tion. He is likewise an official responsible to sign the
Council's return (of an organization exempt from income
tax) with the Internal Revenue Service and he takes the
minutes of the Council's meetings and supplies copies of
these minutes to the delegates.
The constitution and bylaws of the Building and
Construction Trades Department, AFL-CIO, by which
Respondent Council has been chartered, requires that
Local Building and Construction Trades Councils have,
inter alia, a recording secretary and a treasurer and said
local councils are permited by the instant constitution to
consolidate these offices. Comparing Depolo's duties as he
described them at the hearing with officer positions
described in this constitution 2 and from his testimony that
he is the secretary-treasurer of Respondent Council, I
conclude that Depolo serves, at least, as both the recording
secretary and the treasurer of the Respondent Council.
I find on the basis of all the foregoing including the
authority of Depolo to act in his discretion on financial
matters of the Council between meetings of the Council
and his further activities as the focal point in maintaining
the Council's picket line herein that Depolo is an agent of
the Council within the meaning of Sections 2(13) and 8(b)
of the Act and has acted as such at all pertinent times
hereto.3
Now I will take up the question as to the Council's
alleged labor organization status.
The Council was chartered by the Building and Con-
struction Trades Department of the AFL-CIO and is
affiliated with the Pennsylvania State Building and
Construction Trades Council. The Council is composed of
some 22 unions engaged in the building and construction
industry (two of which, as noted are Respondent Cement
Finishers-also known as Plasterers Local 150-and
Respondent Operating Engineers, which are, admittedly,
labor organizations within the meaning of the Act). All
delegates from the 22 unions to the Council are either
appointed by the local union or elected to be delegates by
the local union's membership. Each affiliated local union is
charged by the Council to pay a monthly per capita
contribution normally computed at 6 cents. The territorial
jurisdiction of the Council includes Wilkes-Barre Town-
ship and, more specifically, the location of the Altemose
project, here involved, on Mundy Street.
As noted, the Council operates from the office of Henry
Depolo, business agent or business manager of Laborers
Local 215, which office is located at 501 E. Main Street,
Wilkes-Barre. The Council pays rent to use a hall in the
basement of this same building for semi-monthly meetings
although such meetings are not always held.
Among the principles and objectives set forth in the
constitution of the Building and Construction Trades
Department, AFL-CIO,4 are: "The promotion of health
and safety practices and procedures to the end of
protecting the health and safety of tradesmen in the
building and construction industry; to promote industrial
peace and to develop a more harmonious feeling between
employers and employees and to aid and assist all
affiliated National or International Unions in securing
improved wages, hours and working conditions through
the process of collective bargaining." 5
While Depolo insisted that the constitution and bylaws
of the Building Trades Department, AFL-CIO, did not
govern the affairs of the Respondent Council in their
entirety and that the Council had not adopted all its
provisions he admitted that this document "primarily"
governs the Council's affairs and that the Council does not
operate under any other documents besides the instant
national constitution and the constitution and bylaws of
the Pennsylvania State Building & Construction Trades
Council. The instant national constitution prohibits local
Councils from maintaining constitutional provisions incon-
sistent with those of said national constitution.
Further Depolo admitted that the goals of the Respon-
dent Council are to promote the construction industry and
to create more jobs in the local area for the members of the
various unions that belong to the Council. He did not deny
that the aims of the Council were to promote the health
and safety of the members of its constituent local unions.
And, indeed, he admitted that the Council assists in
settling employer-employee disputes and union-employer
disputes.
I, accordingly, conclude that the objectives of the
Council are the same as, or similar to, those of the national
body in these respects.
The Council also makes payments for picketing at
various construction sites throughout its jurisdiction. And,
2 See G.C. Exh. 10, pp. 33 to 40, particularly article V "Officers." Reports U.S. Department of Labor in 1959, the Council stated that the
3 My findings in respect to the activities of Depolo as secretary-treasurer bylaws which it was using were the constitution of the Building and
of the Respondent Council are based upon his testimony which I credit in Construction Trades Department, AFL-CIO, with which it was affiliated.
this regard . 5 See G.C. Exh . 10, constitution of the Building and Construction Trades
4 In its initial report filed with the Bureau of Labor-Management Department, AFL-CIO, article II.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as will appear, Depolo sought to obtain recognition by
Altemose of the Council's constituent local unions for the
work within their respective jurisdictions at the Mundy
Street project and assured Edward C. Wideman, III, a
principal of Altemose, that Altemose's nonunion employ-
ees would be accepted into the appropriate building trade
union if Altemose agreed to a 100-percent union job at the
Mundy Street site . In this same connection Depolo also
offered to speak to union subcontractors whose rates did
not meet Altemose's projected job costs.
Further, Respondent Council has filed annual reports
(forms 990) with the Internal Revenue Service on which
the Council claims exemption from income tax under
section 501(cx5) of the Internal Revenue Code.6 This form
provides certain activity codes whereby the party filing
may identify its purposes and activities and what sort of
organization it is. In this form, which was signed by
Depolo under penalty of perjury, the Council claimed
exemptions under codes 261, 262 and 263.
All three of these codes appear under the head:
"Employee or Membership Benefits Organizations." Code
261 is "Improvement of Conditions of Workers." Code 262
is "Association of Municipal Employees" and code 263 is
"Association of Employees."
Based on all of the above, I am impelled to the
conclusion that Respondent Council satisfies the definition
of a labor organization under Section 2(5) of the Act:
The term 'labor organization' means any organiza-
tion of any kind, or any agency or employee represent-
ative committee or plan, in which employees partici-
pate and which exists for the purpose, in whole or in
part, of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employ-
ment, or conditions of work.
Respondent is clearly an "organization." Thus, as has
been found, supra it is admittedly an association of labor
organizations engaged in the building and construction
industry, it holds meetings of delegates of its affiliate
locals, keeps books and records through Depolo, and files
reports as a labor organization with the Internal Revenue
Service and the Labor Department.
From all the foregoing it is also clear that it is a "labor
organization" within the framework of the definition of
Section 2(5). For it exists certainly in part, for the purpose
of dealing with employers at least in respect to grievances,
labor disputes and conditions of work. Depolo's actions in
seeking recognition for the constituent locals of the
Council and in trying to organize Altemose's employees
into these locals, indicates that the Council likewise exists,
in part, for the purpose of dealing with employers in
matters of collective bargaining. For recognition is the
necessary precondition to such a bargaining relationship
9 25 U.S.C.A. 1501(cx5).
I General Plumbing & Heating Company, Inc., 155 NLRB 1184, 1186-87.
I Space Services International Corporation, 156 NLRB 1227.
For similar cases in which the Board has held such a council of local
trade unions to be a labor organization within the meaning of the Act, see
General Plumbing 4 Heating Company, Inc.. supra Space Services Interna-
tional Corporation, supra,; E. Smith Plumbing Company, 164 NLRB 313,
and is within the broad scope of the term "dealing with" in
Section 2(5) of the Act .7 Finally, the Council has held itself
out to the Internal Revenue Service as an association of
employees, which I treat as a prior admission against
interest for the purposes of this case . And, I hold, such
employees are enabled to participate in the affairs of the
Council through their delegates to it .8
Since the Council was also the unit through which its
constituent locals acted in establishing and maintaining the
picket line at the Altemose project , as has been mentioned
and will be discussed more fully, infra, I further conclude
that the Respondent Council is an agent of its constituent
locals within the meaning of Section 2(13) and 8 (b) of the
Act .9
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events-The
8(b)(7)(C) Case
The picketing, which is the subject matter of this alleged
unfair labor practice, took place at a site on Mundy Street
(or New Mundy Street), Wilkes-Barre Township, Pennsyl-
vania. At this location, at all times pertinent hereto, the
Charging Party was engaged in constructing a showroom-
warehouse for the owners of this project, Edward C.
Wideman, III, and his wife, under the fictitious style "Mall
Associates." Wideman III also has an interest in Altemose,
the Charging Party.
Edward C. Wideman, III, is the son of Edward C.
Wideman, Jr., sometimes referred to as Edward C.
Wideman, II, who is also a county commissioner of
Luzerne County, Pennsylvania, in which Wilkes-Barre is
situated. Wideman II has not been associated with
Wideman III in the construction of the Altemose project
on Mundy Street.
The Charging Party, Altemose, entered into a final
contract to erect the Mundy Street showroom-warehouse
for Mall Associates on or about June 10, 1973. Actual
construction began around that date and the anticipated
completion was then about October 1 to 15, 1973.
Construction work on this project was, however, still
continuing as of the time of the hearing (January 9, 1974).
As of that time the target date for completion of the project
was moved to February 15, 1974.
Altemose has its own employees working at this site.
They have never been represented for the purposes of
collective bargaining. Nor has any petition been filed for
an election among them pursuant to Section 9(c) of the
Act.
Within the first 2 weeks after construction began on the
instant Mundy Street project, Altemose sent out letters of
intent to execute a contract to various subcontractors for
the performance of certain work at the site. These were
Addy Asphalt Company for excavation work; Albeck &
Wysocki Contractors for masonry work, Peter Minetola for
footnote 4; Bowers Building and Construction Company, 200 NLRB No. 18.
And the Board has so held where , as here, such a council does not enter into
collective-bargaining agreements . E.g., General Plumbing & Heating Compa-
ny, Inc., supra.
9 Cf. E. Smith Plumbing Company, supra; Kopp Evans Construction
Company, 144 NLRB 260,266.
WYOMING VALLEY BLDG. & CONSTR. TRADES COUNCIL
the placement and finishing of concrete floor slabs and
Walsh Steel Erectors to do steel erection work. Addy's
employees were represented by Respondent Operating
Engineers . Wysocki's employees are represented by Brick-
layers Local 30 and by Laborers. Minetola is a member of
Bricklayers Local 30. Walsh's employees were also repre-
sented by a union. Bricklayers and Respondent Operating
Engineers are both members of Respondent Council.
Addy Asphalt Company commenced work excavating at
the site between June 10 and 15, 1973.
Some days after the Altemose job commenced, it cane
to the attention of Depolo, the secretary-treasurer of the
Council. At about that same time members of the Council
met with representatives of the Bechtel Corporation and
Pennsylvania Power and Light Corporation to discuss
work at a different and unrelated project. After this
meeting broke up and the employer representatives left,
delegates from 8 to 10 of the Council's constituent locals
remained at the meeting and, in the presence of Depolo,
they agreed to set up a picket line at the Altemose site.
Arrangements were also made at this time for a picketing
schedule whereby each constituent union would provide
pickets for a week at a time. This schedule was written
down by Depolo and thereafter maintained by him.10
Picketing began on or about June 24, 1973,11 and it
continued every working day until November 8, 1973.
In the beginning there were two pickets, only one of
whom would carry a sign . This read:
For Information Purposes Only. Mr. Wideman, are you
in the construction business? Mr. Wildeman, what
about our local contractors?-AFL-CIO
Also during the course of the picketing a red pick-up
truck appeared at the Mundy Street site occasionally over
a 2 week period. This truck had placards attached to it
which read variously:
Mr. Wideman. The Laborers and Engineers Union
gave out Union Jobs To Elect a Wideman. Why Can't
You Give the Union One Job? AFL-CIO.
or
Mr. Ed Was A Horse . . . But . . . He would Not
Employ A Non-Union Contractor To Perform His
Work . How about you, Mr . Ed. Wideman? AFL-CIO.
On the first day the pickets arrived at the site, one of
them , whose first name was Charles, told Rudolph Gular,
Altemose's foreman at the Mundy Street site, that if he,
Gular, had any questions about the pi;keting, he should
call Henry Depolo, to whom Charles referred as the "head
of the local building trades council."
In the beginning the pickets were present only during the
hours 8 a.m. to 3 or 3:30 p.m. but, eventually, about mid-
10 These findings are based on the credible testimony of Depolo in this
regard.
I i This date is based on the credible testimony in this regard by Edward
C. Wideman , III, and is consistent with Depolo's recollection of the date
when Council delegates agreed to set up the picket line.
12 These findings as to the sources of the pickets are based on the
1055
August 1973, the hours were extended from 7 a.m. to 7
p.m. in two shifts.
The pickets were supplied by various constituent local
anions which comprise the Council's membership. These
included locals of the Abestos Workers, Bricklayers,
Carpenters, Electricians, Laborers, Painters, Plasters (also
known as Cement Finishers), Roofers and Sheetmetal
Workers. The locals, which furnished men for picketing
duty, rotated on a weekly basis in this responsibility as
originally agreed upon at the meeting of the Council in
June 1973, previously described. Some locals took a turn a
second time.12
The picketing resulted in the failure of a number of
individuals employed by employers, other than Altemose,
to make deliveries or to perform services at the site.
Among the first of these were individuals employed by
Addy Asphalt Company who, as noted, had already started
excavation work at the site before picketing began. On the
first few days of the picketing these individuals employed
by Addy continued to work, despite the picketing-having
arrived at the site on each of these days before the pickets
did. After the Addy personnel had worked behind the
picket line on this basis for a few days, four men, also
pickets, came on to the site and told the Addy personnel
that there were pickets out front and that the Addy
employees should get off the job. 13 Before leaving, one of
the Addy operators told Gular, in the presence of other
Addy personnel, that if the Addy employees did not leave
the site they would be fined by their local union. Addy's
operators, as mentioned, were represented by Respondent
Operating Engineers ,14 which is a constituent union of the
Respondent Council.
When Addy's force left, there remained about 2 weeks of
excavating work still to be performed at the Altemose job
on Mundy Street. No operating engineers represented by
any labor organization performed work at the site from
that time until subsequent to November 8, 1973.
Thereafter, Minetola, the concrete floor slab subcontrac-
tor, and Albeck & Wysocki, the masonry subcontractor-
-both of which subcontractors had received letters of
intent from Altemose in June 1973-refused to work at the
site because of the picketing.i5
Also, as the result of the picket line some 10 vehicles,
seen by Gular approaching the site to make deliveries,
turned away without completing the delivery. On this
occasion, the trucks approached the site, the driver spoke
to the picket and then the driver rode off. On one such
occasion Gular noticed a UPS truck failing to make a
delivery and Gular followed the truck in his own vehicle.
After catching up with the truck Gular spoke to the driver
and asked if the driver had a package for Altemose. The
driver had such a package and he handed it over to Gular.
Gular signed for the package and brought it back to the
site in Gular's own vehicle. In instances where delivery
trucks crossed the picket line-or "honored" the line by
refusing to cross it-the pickets recorded the name of the
admissions of Depolo in this regard.
13 Gular, Altemose's superintendent, credibly so testified
14 Respondent in Case 4-CC-778, consolidated herewith
15 Peter Minetola, who is self-employed but with his own work force and
Stanley Wysocki, of Albeck & Wysocki, each credibly so testified in respect
to his refusal to perform work at the Mundy Street site.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, the date and time, and sometimes the license
number of the vehicle. These notes by the pickets were
then forwarded to Respondent Council which maintained
them on file . The Council produced these records at the
hearing pursuant to the General Counsel's subpoena.
On one occasion a picket threw roofing nails in the
driveway at the Mundy Street site in the presence of Gular.
Altemose was also required to use its own vehicles to
make pickups from some 16 or 17 suppliers who refused to
send vehicles through the picket line.16
About early August 1973, a meeting between Henry
Depolo and Edward C. Wideman, III, was arranged by an
intermediary, William Langdon. The meeting took place at
the Holiday Inn in Wilkes-Barre with only Depolo and
Edward C. Wideman, III, in attendance.
The meeting began with Wideman telling Depolo of his,
Wideman's, business experience in the community and of
his intentions for the future. Wideman then asked Depolo
why he was being picketed. Depolo replied that the
picketing was because the Altemose job was nonunion.
Wideman protested that the first subcontractor, Addy, was
a union employer. Wideman also offered to show Depolo
letters of intent to other unionized contractors but Depolo
refused to look at them.
Depolo rather stated that, even if the job were 99-percent
union, this would be unacceptable. The job, according to
Depolo, had to be 100-percent union or nothing. Wideman
then offered to make the job 80-percent union but Depolo
remained steadfast in his position that the job be 100-
percent union or nothing, stating that the Respondent
Council would be concerned if Wideman ran a "mixed"
16 These findings as to the picketing are based upon the credible
testimony of Gular and Edward C. Wideman , III, in this regard and upon
the aforementioned records produced by the Council at the hearing.
Respondent Council argues in its brief that Gular was not a credible
witness and points to a number of claimed discrepancies in his testimony to
support this contention.
I reject this argument . I found Gular to be an essentially forthright
witness who, in my judgment, testified in a sincere and conscientious
manner.
The claimed discrepancies in his testimony were either explained by him
or related to irrelevant and inconsequential matters . Thus, Respondent
Council says it is not clear whether Gular was hired by Altemose official
Yuer or by Altemose official Leon Altemose . Gular testitifed that he spoke
to them both when negotiating for a job with Altemose . Respondent
Council further suggests that the pickets could not have told Gular that
Depolo was the head of the Council since Depolo is not its president. I
reject this contention in view of the central role of Depolo-more than
Sutcavage, the Council president-in organizing the rotation of pickets and
financing the picketing operations . Also, as noted, the only office from
which the Council functions is Depolo's office and only he has a telephone
number on the Council's letterhead in use in 1973. Hence, he was the head
of the Council at least insofar as its picketing activities herein were
concerned.
Respondent Council raises a question whether Gular spoke to pickets "on
occasion" or "on numerous occasions." This distinction-if any-is not
weighty in the circumstances . For it is clear that the pickets come every day
for the 4- 1/2 months during which the picket line was maintained and
Gular did speak to them.
Respondent Council raises a question whether Ruggere told Gular that
his, Ruggere 's, windows were smashed . This incident has not yet been
discussed in this Decision . However, I do not deem such a statement by
Ruggere improbable . For, as will appear , the record elsewhere indicates that
Ruggere was threatened at the time in question by persons unknown in
telephone calls to Ruggere and was told by his employees that other workers
in the area had told them they could expect trouble including damage to
their equipment (which included trucks).
Finally, Respondent questions whether Gular was first told he would
job. Wideman then said that he had men on his payroll
who could do the work. To this Depolo responded that
"we'll" accept these individuals into whatever trade they
might fall into and that Wideman would not have to
dismiss any of his employees.17 Depolo then went on to say
that there was other work in the area and that with "our"
cooperation certain union contractors in the area had
become very large. Depolo added that if he, Depolo, were
to agree to an 80-percent-union arrangement this would
negate his other contractual commitments and was
contrary to his practice.
Wideman persisted in his offer of an 80-percent-union
job, but Depolo continued to refuse. Depolo, however, did
allow that, with only a 20 percent difference in the
respective positions, the two were not far apart.18 Depolo
stated that he would help Wideman get started and would
in fact talk to any union contractors who did not meet
Altemose's projected costs at the job. Wideman rejected
this offer, saying that he or officials of his company would
handle negotiations with any contractor. Then Depolo
stated that normal arrangements with union contractors
were for 3 years but in this instance he was willing to
recommend a 1-year contract to see if it would work.
The meeting ended without any agreement with respect
to the dispute. But the matter of further possible meetings
was left open.
Several days later Wideman called Depolo in an effort to
arrange another meeting and Depolo told Wideman that
Depolo would get back to him. However, no further
conversations between Depolo and Wideman occurred.19
On August 22, 1973, picketing also occurred at 31 West
work until October 1973 or indefinitely. I do not see the significance of this
discrepancy, if any . Whatever Gular was told-and I conclude that the
weight of his testimony establishes that there was no firm date set for the
conclusion of his services with Altemose-he was still employed by
Altemose at the time of the hearing in January 19;4.
I also found Edward C. Wideman to be a generally credible witness. I
will take up questions raised by Respondent Council in regard to his
credibility later in this Decision.
17 In the context of this remark I conclude that Depolo was speaking of
whatever trade union had jurisdiction of the work done by the employees.
The trade of the individual was obviously already established.
19 Depolo also told Wideman, as Depolo admitted at the hearing, that he
and Wideman would be "two poor people" if they couldn' t agree to settle
the remaining 20 percent.
19 The findings as to the meeting on August 14, 1973, are based upon the
testimony of Wideman and Depolo in this regard and certain admissions by
Depolo in the prior Federal District Court hearing in which Depolo
acknowledged in the present proceeding . Whenever, the testimony of
Depolo differed from that of Wideman, I have credited Wideman.
Wideman, though a bit defensive , impressed me as a generally sincere
and reliable witness . I am not impressed with the claimed inconsistencies in
his testimony which are pointed out in the Council's brief.
Thus, the Council argues in its brief that Wideman's testimony in the
prior district court hearing was not emphatic on the point that Wideman III
told Depolo in this meeting that Wideman III's father , Wideman II was not
associated with Wideman III in the Altemose venture . Suffice it to say that
the record in the prior proceeding clearly shows that Wideman did testify he
so informed Depolo at that time.
Wideman's testimony in the earlier proceeding that Addy's employees
left the Altemose site after I day rather than after about 10 days, as he
testified in this proceeding, was explained by Wideman's testimony that he
checked his records after the District Court hearing and learned that the
latter version was correct.
Depolo, on the other hand, was frequently defensive in his demeanor on
the stand and was argumentative on several occasions. Hence, I am unable
to conclude that his testimony was given in a forthright manner. Indeed, on
one occasion , I was called upon to admonish him for asking his counsel
WYOMING VALLEY BLDG . & CONSTR. TRADES COUNCIL 1057
Market Street in Wilkes-Barre where Wideman III had an
office and where he and his father, Wideman II then
shared an office . Picketing also occurred on the same date
outside Luzerne County Courthouse in Wilkes-Barre,
where Wideman II 's office as a county commissioner is
located.
The signs which were carried at the court house variously
bore the legends:
Mr. Ed Was A Horse . . . But . . . He would Not
Employ A Non Union Contractor to Perform His
Work. How About You, Mr . Ed Wideman? AFL-CIO
or
Ed Wideman II Ed Wideman III Anti -Union What
about It? E.E.A. AFL-CIO
A sign carried in the picketing of the offices of West
Market Street bore the same legend as the second legend
noted immediately above.
A] Slush, business agent of the Respondent Cement
Finishers, Al Sutcavage, president of the Respondent
Council, and Depolo marched on the picket lines at the
courthouse.
The picketing at the courthouse and at the offices on
West Market Street lasted only that I day.
The picketing at the Altemose site on Mundy Street
lasted from about June 24, 1973, until the Federal district
court hearing on November 8, 1973, as previously noted.
B. Concluding Findings as to the Picketing in the
CP case
Section 8(b)(7)(C), which Respondent Council has been
charged with violating, prohibits picketing by an uncerti-
fied labor organization when an object thereof is "forcing
or requiring an employer to recognize or bargain with a
labor organization as the representative of his employees,"
where such picketing has been conducted for more than 30
days without the filing of an election petition. The second
proviso to this section exempts from the prohibition "any
picketing or other publicity for the purpose of truthfully
advising the public (including consumers) that an employer
does not employ members of, or have a contract with, a
labor organization" unless an effect of such picketing is to
induce any individual employed by any other person in the
questions while he, Depolo, was being examined by the General Counsel.
Depolo also gave answers in a number of instances which were
inconsistent with his testimony in this proceeding or contrary to testimony
in the prior court proceeding. For example, Depolo testified he only
represented Laborers Local 215 at the meeting with Wideman. Yet he
admitted that he told Wideman II that the job had to be 100-percent union
or nothing, and it is clear that many of the Altemose employees would have
to be represented along craft line by other unions-a matter , as I have
found, that Depolo agreed to arrange. Again, at one point Depolo said he
didn't think he had suggested that the meeting take place at the Holiday
Inn, whereas in his testimony in the prior proceeding he stated that this
location was his suggestion . Again in the present proceeding Depolo insisted
that the Council did not adopt all the provisions of the constitution and
bylaws of the National and Pennsylvania Building Trades Department
whereas in the prior court hearing he stated the Council "had to" adopt all
of the objectives and principles set forth in these documents . Also, in the
prior court proceeding he testified that pickets were not paid, but in the
present proceeding he admitted they were paid "expenses"-the expenses
course of his employment not to pickup, deliver, or
transport any goods or not to perform services.
In the present use neither Respondent Council, which I
have found to be a labor organization within the meaning
of the Act, nor any of its constituent unions has been
certified as the representative of any of Altemose's
employees and it is undisputed that the picketing has been
carried on for more than 30 days without the filing of an
election petition. Thus, the principal questions presented
here are whether the Council is responsible for the
picketing, whether the picketing was conducted with an
object of organization or recognition and, if so, whether
the aforementioned publicity proviso exempts the picketing
from the proscription of Section 8(b)(7)(C) of the Act.
I conclude that the Council was responsible for the
picketing, that the picketing had an object of organization
or recognition and that the picketing is not saved from
illegality on the basis of the publicity proviso.
1. The Responsibility of the Council for the
picketing
It is clear that the Council established the picket line at
the Altemose project and maintained it until picketing
ceased on November 8, 1973. Thus, it was decided at a
gathering of Council members in about mid-June 1973 that
;a picket line would be set up at the Altemose site and
arrangements were made, by agreement of those present, to
establish a system of rotation whereby each of the
constituent unions would take turns to supply pickets for a
week at a time. Pickets were paid for their services by
checks drawn on the Council's bank account and signed by
Sutcavage, the Council president, and Depolo,lits, secretary-1
treasurer. On occasion, Depolo also paid the pickets in
cash for which he was reimbursed from Council funds with
moneys donated thereto from the constituent unions. The
Council maintained records of suppliers which "honored"
or crossed the picket line. The pickets, as I have already
found, informed Altemose official, Gular, that if he had
any questions about the picketing he should contact Henry
Depolo, an official of the Council.
Thus, the picketing was the Council's act from its
beginning throughout its entire course and the picketing
being a flat fee of $ 15 per day. Depolo also testified in the present
proceeding that he participated in picketing at the county courthouse-a
matter to be taken up next herein-simply because he heard there was going
to be some picketing . He later admitted he was picketing at that location
because he thought the Widemans II and III , were antiunion.
In discrediting Depolo's version of this meeting with Wideman (to the
extent it differs from that of Wideman ) and in finding that Depolo said he
would recommend a I-year contract, I am not unmindful of his further
testimony in which he stated, in essence, that no contract of that duration
was then available. While his testimony in the latter regard was that the
local contractors association refused a 1-year extension of labor contracts in
the area at that time, there is no showing that Altemose-or the trades
unions which comprise the Council-would not be free to negotiate their
own separate contracts outside of such association. For Altemose which was
a nonunion employer at the time of this meeting, and continues to be so,
obviously did not then belong to any multiemployer bargaining group
whose commitments to labor organizations in the area were binding upon it.
In any event the credited testimony of Wideman in this regard was only that
Depolo stated he would "recommend" a 1-year contract.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not a series of separate actions by the Council's
constituent local unions.20
2. The objectives of the picketing
The sign which was carried by the picket at the Mundy
Street site recited, as noted; "For information Purposes
Only. Mr. Wideman are you in the construction business?
Mr. Wideman what about our local contractors? AFL-
CIO.-
Read literally, this sign bears a legend directed at "Mr.
Wideman" asking him to consider using local contractors
in the construction business . However, a picket sign alone
is not the only evidence of the objectives of the picket
line.21 The Board rather considers all the surrounding
circumstances in determining the answer to this question.
Depolo admitted at the hearing that the purpose of the
picketing, which he denominated as informational, was
because "we thought Mr. Wideman was running a
nonunion job." And Depolo's remarks to Wideman III in
their meeting of August 14, 1973, make it manifest that the
Council sought establishment of a 100-percent-union job at
the Altemose project.22 Further, signs attached to the truck
which appeared at the site , though likewise addressed to
"Mr. Wideman," imply that the job was "non-union."23
The signs carried at the Court House and in front of
Wideman's office on August 22, 1973, also indicate that the
Wideman's and the delphic "E.E.A.," also mentioned in a
sign carried at both locations, were nonunion or antiunion.
"E.E.A." meant "Ed" (for Wideman II), "Ed" (for
Wideman III) and "A." for Altemose.24
Picketing with signs stating that a job is "nonunion" has
been held by the Board to be picketing with "an" objection
of organization or recognition.25
Taking this language from the signs in conjunction with
Depolo's demands of Wideman III at their meeting of
August 14, 1973, for a "100 percent union job" and
Depolo's further statement to Wideman III at the same
meeting to the effect that arrangements would be made to
receive the unorganized Altemose employees into appro-
priate craft unions, I am satisfied that the picketing herein
had "an" object of organization or recognition.
I am further satisfied, contrary to the Council, that it
does not matter that the Council itself may not directly
represent employees or bargain for them. For it is sufficient
that the Council, through which its subordinate local
unions (which do represent employees) have operated as a
20 It is, therefore , irrelevant that no one of the Council's constituent
labor organizations supplied pickets for more than 30 days.
21 E.g., Penny Construction Company, Inc., 144 NLRB 1298, 1300.
22 1 discount the second part of Depolo's demand that the job be 100-
percent union or none, in view of his obvious efforts to persuade Wideman
III to agree that not only 80 percent, but the remaining 20 percent, of the
job be union.
23 On the basis of the demand to "give the Union one job" and the
suggestion that Wideman should "not employ a nonunion contractor to
perform his work."
24 1 reach this conclusion based on all the circumstances. "E.E.A." fits
into the initials for "Ed, Ed and Altemose." Depolo admitted that the
picketing at the courthouse was because "we thought both Widemans were
in business together ." Depolo also admitted there was no such thing as the
"East End Association which had been rumored as the meaning of "E.E.A."
Stush, business agent of Respondent Cement Finishers, who picketed at the
courthouse along with Depolo, admitted at the hearing that he, Stush,
unit here , seeks recognition on behalf of such constituent
local unions or organization by them.26
Having established that the picketing has "an" unlawful
objective , the Council's actions are not exculpated by the
fact that the picketing may have had other objectives
which were lawful.27 Such an additional objective , suggests
the Council's brief , is a political dispute with Wideman II
over the latter's claimed failure to hire union contractors
for the Altemose project despite the fact that local unions
had supported Wideman II in his election to public office.
But even if I were able to disentangle a political objective
from that of organization or recognition in the circum-
stances of the case , the fact would still remain that the
picketing also had "an" object of organization or recogni-
tion and is thus proscribed by Section 8(b)(7)(C).
3. Whether the organizational and recognition
picketing herein is exempt from Section 8(b)(7)(C)
by virtue of that section's "publicity" proviso
Section 8(b)(7)(C) prescribes that "... Provided further,
that nothing in this subparagraph (c) shall be construed to
prohibit any picketing or other publicity for the purpose of
truthfully advising the public (including consumers) that
an employer does not have members of, or have a contract
with, a labor organization .. .
The Council claims that its picketing here, whatever its
objective, is exempt from Section 8(b)(7)(C) by force of this
proviso. I disagree.
To begin with, none of -the picket signs herein are
addressed to the public. They are addressed rather to "Mr.
Wideman," because, as Depolo admitted, he thought
"Wideman" was running a nonunion job. Depolo's
subsequent efforts to obtain a "100 percent union job"
with Wideman, III, were in furtherance of this complaint.
In addition, the sign carried by the pickets at the site (as
contrasted with the signs attached to the trucks for about a
2-week period) made no mention of any claim that
Altemose did not employ members of, or have a contract
with, a labor organization. The signs carried on the truck
suggested this claim only by implication and that not
readily ascertainable in the mind of unitiated passersby.
Hence, I find an insufficient basis to conclude that the
picketing herein was "for the purpose of truthfully advising
the public (including consumers) that an employer does not
employ members of, or have a contract with, a labor
organization."
picketed at the courthouse "in connection with the Altemose job." Charles
Depolo, Henry Depolo's son , who is the director of an industry promotion
fund (which appears in the telephone books as "Industrial Promotion Fund,
Wyoming Valley Building & Construction Trades Council" at the same
address as his father , and is admittedly supported by money from contracts
negotiated by four of Respondent Council's constituent locals) stated on
local television and was quoted in an article in a local newspaper on the
same date as saying that "E.E.A." stood for "Ed, Ed and Altemose." There
is no indication in this record of any request for a retraction of either
publicized remarks.
25 Cascade Employers Association, Inc., 151 NLRB 1378, enfd. sub nom.
Carpenters Local No. 2133, 356 F.2d 464 (C.A. 9, 1966); Crown Cafeteria,
135 NLRB 1183, 1185, affd. sub nom . Leonard Smitley 327 F.2d 351 (C.A. 9,
1964).
26 See Bowers Building and Construction Company, 200 NLRB No. 18;
General Plumbing & Heating Company, Inc., supra.
27 Foodmaker, Inc., d/b/a Jack-In-The-Box, 203 NLRB 114.
WYOMING VALLEY BLDG. & CONSTR. TRADES COUNCIL 1059
But even if picketing herein met the requirements of the
foregoing proviso , the picketing has nonetheless lost its
exemption from Section 8(b)(7)(C) by force of the last
proviso to that section , which states:
... unless an effect of such [publicity ] picketing is to
induce any individual employed by any other person in
the course of his employment , not to pick up, deliver or
not to perform services ." (Brackets mine).
This record establishes , as I have found , that pickets
induced the Addy employees to leave the premises,
although 2 weeks , work remained to be done and that, as
the result of the picketing , some 10 deliverymen came to
the site but left without completing the delivery there. As a
further result of the picketing some 17 other carriers or
suppliers refused to send their vehicles to the Altemose site,
thus requiring Altemose to send its own trucks to make
pickups from them.
I conclude that the picketing has had an actual impact
upon Altemose's business on the basis of this interference
with deliveries and services as well as the consequent
requirement that Altemose modify its method of obtaining
deliveries from suppliers . I thus further conclude that the
picketing had an unlawful "effect" within the meaning of
the last proviso to Section 8(b)(7)(C ).28 Indeed the
Altemose project which was to be completed in October
1973 was still going on at the time of the hearing in
January 1974-an obvious delay of several months.
C. Case 4-CC-777; Background and Sequence of
Events
The subject matter of this aspect of the complaint is the
allegation that, on or about October 10, 1973, Respondent
Cement Finishers, through its business agent, Albert Slush,
threatened to cause Cement Finishers' members to cease
working at all union jobs where the Superior or Shawnee
Concrete companies were supplying concrete unless
Superior or Shawnee ceased doing business with Altemose.
In building the Mundy Street project Altemose , was
required to use a certain amount of concrete. Altemose,
accordingly, contracted with James J. Ruggere, the owner
of two local concrete companies, Superior Concrete
Company and Shawnee Ready Mix Concrete, to obtain
this item. Deliveries of concrete were thereafter made by
these two companies during the summer of 1973 ending in
August when Altemose's need for concrete temporarily
28 Foodmaker, Inc., d/b/a Jack-In-The-Box, supra, and cases cited
therein ; Westra Construction Inc., 171 NLRB 881; Joe Hunt's Restaurant,
138 NLRB 470.
Hence I deem it of no consequence , contrary to Respondent, that
Altemose was nonetheless somehow able to obtain supplies to continue the
project with its own employees.
Nor do I find it necessary, in finding a violation here, to draw a
distinction , as the Council's brief would have me do, between the
"causation" and the "inducement" of the stoppages. For the Board makes
no such distinction but rather applies the test of the "actual impact" on the
employer's business measured by the stoppages resulting from the
picketing-the same test I have applied herein . Barker Brothers Corporation
and Gold's Inc., 138 NLRB 478, 491 affd. 328 F.2d 431 (C.A. 9, 1964) and
cases cited supra.
29 There is no indication in the record that these instructions were given
to Namey by Respondent Council.
30 Maccuga explained that it went "against the grain of everybody else."
subsided. The deliveries were made by Ruggere's employ-
ees using Ruggere's own trucks which passed through the
picket line at the Altemost site.
Maccuga, a driver for Ruggere and also shop steward for
Teamsters Local 401, which represented Ruggere's drivers,
explained at the hearing that the drivers had passed
through the picket line on instruction from the Teamsters
Local business agent, Leo Namey, who had told Maccuga
that he, Namey, considered the picketing to be informa-
tional.29 This procedure did not sit well with Ruggere's
employees because of the reaction to it by other workers in
the area.30 Maccuga stated that Ruggere's men were
grumbling, noting that "when you go on a job and
somebody calls you a scab, that don't look good." Ruggere
was also told by his drivers that various workmen on jobs
in the area had told Ruggere's drivers that "we could
expect trouble" including damage to the equipment, if
Ruggere continued to serve Altemose. Ruggere received
anonymous telephone calls to the same effect during the
late summer of 1973.
In September 1973 Altemose was ready for more
concrete and requested Ruggere to resume deliveries.
Ruggere was hesitant to do this and requested a meeting
with Altemose officials to discuss the matter. He subse-
quently met with Gular and Wideman III, and informed
them that he would not serve concrete with his trucks
because of the anonymous phone calls and the grumbling
of his men. Ruggere suggested, however, that if Altemose
wanted to buy any concrete from him, Altemose should
use its own trucks.
This was agreed upon and concrete was "batched" 31 on
to the Altemose trucks at one of Ruggere's plants on
October 9 and 10, 1973.
On the morning of October 10, 1973, Ruggere's steward,
Maccuga, was making a delivery at the site where Al Stush,
business agent of Respondent Cement Finishers, was
working. Maccuga addressed Stush and told the latter
about what other workers in the area had been saying
about Ruggere's men going through the Altemose picket
line-more specifically, that Ruggere's men weren't "hon-
oring their rights." Maccuga said he did not want the
cement finishers to look down "on us workers, so we don't
get a bad name" so he asked Stush to speak to Ruggere
about the problem and get it settled before it went any
further.32 Stush suggested that Ruggere come down to the
site where Stush was working before noon that day and
Maccuga relayed this message to Ruggere.
3' This is an expression , Ruggere explained at the hearing, which
describes the filling of a concrete truck with concrete.
32 Maccuga's testimony rambled considerably. He also stated that he
told Stush that he was concerned about Ruggere 's employees losing out on
work assignments because Altemose was using its own trucks to carry
concrete from Ruggere's plant to the site. However, it does not appear that
Stush raised this matter in the later conversation between Ruggere and
Stush nor that there was any extended discussion of it (Stush whom I
discredit infra, merely said it was mentioned by Ruggere at their later
meeting.) Ruggere did not refer to it in his testimony.
In these circumstances and in view of the otherwise logical sequence of
events, I disagree with the suggestion in Respondent's brief that the meeting
between Stush and Ruggere was primarily arranged to ward off trouble
between Ruggere and his own employees including a possible strike by the
latter. Moreover , I am at a loss to see why Ruggere would come to see Stush
about such a possibility because Stush is the business agent of the
Respondent Cement Finishers and Ruggere's drivers are represented by the
(Continued)
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruggere spoke to Stush at the site about 11:45 a.m. that
same morning . After a brief exchange Ruggere asked Stush
what he wanted to talk about. Stush then asked Ruggere if
Ruggere was delivering concrete to the Altemose job. To
this Ruggere replied that he was no longer delivering
concrete to Altemose but was hatching out concrete in
Altemose's trucks. Slush then told Ruggere not to continue
this practice or there would be trouble. When asked what
kind of trouble, Slush stated that, if Ruggere continued
supplying Altemose, on the very next site on which
Ruggere's trucks appeared when cement finishers were
working on a union job, Stush would instruct his men to
kick their boots off and walk away from the job. Stush
added that this would put Ruggere in trouble with the
contractors.
In the face of this threat Ruggere agreed to stop
supplying concrete to Altemose and did not resume
deliveries until after the Federal district court 100)
injunction hearing on November 8, 1973. Stush then told
Ruggere to telephone Depolo or Sutcavage, the president
of Respondent Council, to tell him what had happened.
Ruggere later called Sutcavage, informed the latter of his
conversation with Stush and his decision to stop supplying
Altemose with concrete. Sutcavage thanked Ruggere and
hung up.33
D. Concluding Findings in Case 4-CC-777
Based on Stush's threat to Ruggere to cause a work
stoppage if Ruggere's companies, Superior or Shawnee,
continued to supply concrete to Altemose, I conclude that
Respondent Cement Finishers threatened, coerced, or
restrained a person engaged in an industry affecting
commerce with an object of forcing or requiring that
person to cease doing business with another person,
Altemose, in violation of Section 8(a)(4)(ii)(B) of the Act.34
E. Case 4-CC-778; Background and Sequence of
Events
Sometime about October 5 or 9, 1973, Altemose
contacted Louis W. Jones, Jr., vice president of Coon
Certified Concrete, informed him of Altemose's difficulties
in obtaining concrete on the Mundy Street job and asked if
Jones would be able to furnish concrete to Altemose in
Altemose's own trucks. Jones stated he would first have to
check with Teamsters Local 401 which represented Coon's
drivers. When Jones later called Leo Namey, business
agent of Teamsters Local 401, the latter stated that
Teamsters had no objection to Coon serving Altemose.
On October 10, 1973, Altemose placed an order for 85
yards of concrete with Coon. Two truckloads of concrete
containing about 11 yards of concrete each were then
batched into Altemose trucks on the morning of October
11, 1973, by Skibitsky, Coon's batch operator. Skibitsky is
a member of, and is represented by, Respondent Operating
Engineers, as are all Coon's batch operators. After loading
these two trucks, Skibitsky was approached by some of
Coon's own drivers, who were represented by the Team-
sters. These drivers asked Skibitsky. not to load any more
Altemose trucks without first checking with Skibitsky's
own union, Respondent Operating Engineers. The Coon
drivers pointed out to Skibitsky that the Altemose drivers
were nonunion and they questioned whether Skibitsky's
'union would permit him to load trucks driven by nonunion
drivers.
Skibitsky agreed to check and telephoned the office of
Respondent Operating Engineers whose business agent,
'Robert Cahill, answered the phone. Skibitsky told Cahill
that he, Skibitsky, was batching concrete for Altemose.
Cahill then asked him if he had batched out any trucks.
Skibitsky replied that he had completed two truckloads,
having started about 6:30 or 7 that morning. Upon hearing
this, Cahill told Skibitsky "you won't batch out any more
trucks." Skibitsky responded to Cahill that his, Skibitsky's,
instructions from his boss, Jones, were to batch these
trucks and that he, Slibitsky, understood that everything
had been cleared in this regard. But Cahill advised
Skibitsky to inform Jones that he, Cahill, had told
Skibitsky not to load any more trucks. Skibitsky then asked
Cahill to get in touch with Jones and Cahill replied that he
would call Jones and tell him that no engineer was going to
batch out trucks for Altemose.35
Skibitsky then spoke with Jones and let him know what
had transpired.
Respondent Cement Finishers and Ruggere's drivers are represented by the
Teamsters.
33 These findings are based on the credible testimony of Ruggere in this
regard . Sutcavage did not testify . From his failure so to do, I draw the
inference that his testimony would not have been favorable to Respondent.
Ruggere, who was subpenaed to appear for the General Counsel, I found
to be a sincere witness who testified in a straightforward manner. Moreover,
his testimony is consistent with the sequence of events.
Stush testified that, at the meeting with Ruggere , he simply told Ruggere
that, since he, Stush , had been away , he was not up to date on the affairs of
Respondent Council. He denied saying anything about kicking off his shoes
but stated that most of his meeting with Ruggere was taken up with the
matter of obtaining cement for a union "on-job-training" program. I deem
Stush's denial inconsistent with the inherent probabilities of the sequence of
events.
Moreover I found other inconsistencies in Stush's testimony. Thus,
Stush 's testimony about the date of his first knowledge that Ruggere was
supplying concrete to Altemose and his knowledge whether there had been
recent meetings of the Council were at odds with his testimony on these
matters in the prior district court hearing . Stush further testified that his was
a small union which did no picketing . Yet he personally picketed at the
courthouse on August 22, 1973, and his union paid moneys to furnish
pickets at the Altemose site.
Maccuga also testified that the "finishers " at some unspecified time had
said that they would not accept "bur" concrete anymore and that if "we
come on the job, they are going to take their bucket, their tools and go
home."
Finally, I note that Ruggere's credibility is bolstered by the fact that he
has obtained concrete orders from other contractors on the recommenda-
tion of Stush in the past-thus suggesting that Ruggere's self-interest would
favor his corroboration of Stush's testimony . Yet Ruggere testified contrary
to Stush.
34 E.g., F. Mascali & Sons, Inc., et a!., 155 NLRB 973.
35 These findings are based on the credible testimony of Skibitsky, who
testified after being subpenaed and who impressed me as a sincere and
careful witness who reconstructed the conversation to the best of his ability.
I was not as impressed with Cahill who, I found , was evasive in at least,
one aspect of his testimony-when describing his responsibilities as an
official of Respondent Operating Engineers-and who nervously moved his
fingers while being examined . Cahill's version of this conversation-that he
merely told Skibitsky to ',use his own judgment in the matter-and Cahill's
version of the later conversation with Jones which will be discussed , infra,
are, in my judgement , at odds with the probabilities of the sequence of events
which occurred on October 11, 1973.
WYOMING VALLEY BLDG. & CONSTR. TRADES COUNCIL
Jones called Cahill about the matter and Cahill informed
Jones that "no operating engineer is going to load trucks
for Altemose" and that he, Cahill, didn't want any of his
operating engineers loading nonunion trucks.36
Jones then told Skibitsky not to batch any more concrete
for Altemose. This meant that Coon did not supply
Altemose with 63 yards of the 85 yards of concrete
Altemose had ordered on that occasion. No more concrete
was sold by Coon to Altemose until after the district court
hearing on November 8, 1973.
F. Concluding Findings in Case 4-CC-778
Aside from urging the credibility of Cahill's versions of
the two instant telephone conversations, Respondent
Operating Engineers contends that the source of, and
motive for, the day's events were that Coon's own drivers
(represented by the Teamsters) were concerned that
delivery work was being taken away from them by the
Altemose truckdrivers, who were nonunion. Respondent
also urges that this dispute which, it says, was between
Coon and Coon's drivers could have been resolved by
Coon by delivering concrete in Coon's own trucks to the
Altemose site. In support of this latter contention Respon-
dent points out that since Namey, the Teamsters' business
agent, had already told Jones that there was no objection
from Teamsters to Coon's doing business with Altemose,
Altemose could have gotten all the concrete it ordered, if
Coon's drivers had themselves delivered it to the Mundy
Street project.
I reject these contentions of Respondent Operating
Engineers . For, in my judgment, each of them misses the
point. The question in regard to the telephone calls here in
issue is not the circumstances which prompted them to be
made but what was said in them. And the question as to
the arrangement whereby Coon did business with Alte-
mose is not what might have been but is rather what was.
Based on my credibility findings I have concluded that
Cahill told Skibitsky not to batch any more trucks for
Altemose and that Cahill also told Jones directly that no
operating engineer would batch trucks for Altemose.
I conclude that by Cahill's direction of Skibitsky not to
load any more trucks for Altemose, Respondent induced
an individual employed by Coon, a person engaged in an
industry affecting commerce, to engage in a refusal in the
course of his employment to perform services with an
object of forcing Coon to cease doing business with
Altemose in violation of Section 8(b)(4)(i)(B) of the Act.37
I further conclude that by Cahill's statement to Jones
that no operating engineer would load any Altemose
trucks, Respondent threatened, restrained, or coerced
36 These findings are based on the credible testimony of Jones. Jones,
who also appeared due to a subpena from the General Counsel, impressed
me as a sincere witness and his testimony is consistent with the logical
development of the events of that day. Cahill 's credibility has already been
discussed . I do not, therefore, credit Cahill 's version of his conversation with
Jones which was that Jones accused him , Cahill, of stopping trucks at
1061
Coon, a person engaged in an industry affecting com-
merce, with an object of forcing Coon to cease doing
business with Altemose, in violation of Section
8(b)(4)(ii)(B) of the Act.38
IN. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondents set forth in
section III, above, occurring in connection with the
operations of the Employers described 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 and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents have engaged
in certain unfair labor practices, it will be recommended
that Respondents be ordered to cease and desist therefrom
and take certain affirmative action deemed necessary to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Altemose, Superior Certified Concrete, Shawnee
Ready Mix Concrete and Coon Certified Concrete, Inc.,
are employers or persons engaged in commerce, or in an
industry affecting commerce, within the meaning of
Sections 2(1), (2), (6), or (7) and 8(b)(4) or (7) of the Act.
2. Respondents Council, Cement Finishers and Operat-
ing Engineers are labor organizations within the meaning
of Section 2(5) of the Act.
3. By picketing Altemose, or causing Altemose to be
picketed, for a period of more than 30 days, without the
filing of a petition under Section 9(c) of the Act, with an
object of forcing or requiring Altemose to recognize or
bargain with Respondent Council and its affiliated labor
organizations, or to force or require Altemose's employees
to accept or select the Council and its affiliated labor
organizations as their collective-bargaining representative,
at a time when none of these labor organizations was
currently certified as the collective-bargaining representa-
tive of such employees, Respondent Council engaged in
unfair labor practices within the meaning of Section
8(b)(7)(C) of the Act.
4. By threatening Ruggere, the owner of Superior
Certified Concrete and Shawnee Ready Mix, that it would
cause a strike with an object of forcing or requiring
Coon's plant which Cahill denied to Jones, and that Cahill told Jones that
he had merely told Jones' man (Skibitsky) to use his own judgment in the
matter.
37 E.g., Bowers Building and Construction Company, supra.
38 E.g., F. Mascali & Sons, supra.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superior or Shawnee to cease doing business with
Altemose, Respondent Cement Finishers has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(b)(4Xii)(B) of the Act.
5. By inducing an individual employed by Coon
Certified Concrete, Inc., to engage in a refusal in the course
of his employment to perform services and by threatening,
coercing, and restraining Coon Certified Concrete, Inc., in
each instance, with an object of forcing or requiring Coon
Certified Inc., to cease doing business with Altemose,
Respondent Operating Engineers has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(bX4)(i) and (ii)(B) of the Act.
[Recommended Order omitted from publication,]