Building and Construction Trades Council of Reading and Berks County

National Labor Relations Board - Board Decisions

Nov 24, 1965

155 N.L.R.B. 1184 (N.L.R.B. 1965)

1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue , Cleveland, Ohio, Telephone No. Main 1-4465.
uilding and Construction Trades Council of Reading and Berks
County and General Plumbing & Heating Company, Inc. Case
No. 4-CC-344. November 24, 1965
DECISION AND ORDER
On September 27, 1965, Trial Examiner Harry H. Buskin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices,
and reconunending that it cease and desist therefrom anti take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and the General. Counsel. filed cross-exceptions and it
supporting brief.
Pursuant to the provisions of Section 3(b) of the National. Labor.
Relations Act, as amended, the National Labor Relations Board has
deleouted its powers in connection with. this case, to a three-member
panel [-len^ibers Fanning, Brown, anti Zagoria].
The Board has considered the Trial. Examiner's Decision, and the
entire record in this case, including the stipulation of facts, and the
exceptions, cross-exceptions, and brief, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner, except
as modified herein.1
ORDER
Pursuant to Section 10(c) of the National. Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein and orders that Respondent Buildilig and Construction Trades
Council of Reading and Berks County, its officers, agents, and rep-
resentatives, shall take the action set forth in the Trial Examiner's
Recommended Order, as so modified :
1. Modify the provisions of paragraphs 1(a) and 1(b) of the Trial
Examiner's Recommended Order by deleting therefrom the terms
"any other employer," wherever they appear, and substituting there-
for the terms "any other person."
i We agree with the General Counsel that the Order herein should be corrected to bar
the use of proscribed means against the secondary employers named in the complaint or
any other "person, " and we shall revise the remedy to conform with statutory terminology.
However , contrary to the General Counsel 's contention , in doing so we find it unnecessary
to modify the Order to name the General State Authority therein, as such action will not
affect the scope of our remedy herein.
155 NLRB No. 115.
BLDG. & CONST. TRADES COUNCIL OF READING, ETC. 1185
2. Modify the notice attached to the.- Trial Examiners Decision,
marked "Appendix," by deleting from both paragraphs the terms
"any other employer," whenever they appear, and substituting there-
for the terms "any other person.'' -
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, brought under Section 10(c) of the Act, was submitted for deci-
sion by Trial Examiner Harry H. Kuskin in accordance with a stipulation by the
parties executed on July 16, 1965. The complaint and notice _of hearing herein was
issued on June 10, 1965, pursuant to charges filed by General Plumbing & Heating
Company, - Inc., herein called General, in which it was alleged that Building and
Construction Trades Council of Reading and Berks County, Respondent herein, had
by certain described conduct violated Section 8(b) (4) (i) and (ii) (B) of the Act.
Respondent filed its answer to the complaint denying that it had engaged in any
unfair labor practices and asserting that-its picketing was organizational, Thereafter,
on July 16, the above stipulation, in evidence, was executed and states the following:
1. All parties hereto waive a hearing before a Trial Examiner.
2. The exhibits and evidence in this proceeding shall consist of the transcript
of testimony and the exhibits in the matter before the U.S. District Court for the
Eastern District of Pennsylvania, entitled "Bernard Samoff, Regional Director
of the Fourth Region of the. National Labor Relations Board, Petitioner, v.
Building and Construction Trades Council of Reading and Berks County,
Respondent" filed as Civil No. 38206, together with the formal papers herein;
namely, the Charge, Complaint and Notice of Hearing, Respondent's Answer
and Order Postponing Hearing Indefinitely, receipt of which formal papers is
hereby acknowledged by all parties. - - -
3. The particular evidence and exhibits submitted by the parties in support
of their respective positions in the manner referred to above as Civil No. 38206
are submitted by the -parties herein to support the respective allegations of the
Complaint and of the Answer.- The parties will offer no other evidence in this
proceeding, including testimony, exhibits or offers of proof, and the issues in
this case are submitted to a Trial Examiner solely on the basis of the exhibits
and evidence described in paragraph 2, above.
4. This Stipulation and the exhibits -and evidence described above in para-
graph 2, shall constitute the entire record herein and shall be filed with a Trial
Examiner.
5. The parties agree to waive, and request the Trial Examiner to waive, the
filing of duplicate copies of the exhibits herein, except as to the formal papers
described in paragraph 2, above.
6. The parties hereby request the-Trial Examiner to set a tine for the- filing
of briefs and that the same be set at least two weeks after the record herein is
filed with a Trial Examiner. The briefs shall otherwise be filed and served in
accordance with Section 102.72 [sic] of the Board's Rules and Regulations,
Series 8, as amended.
Upon assignment of the case to me I advised the parties that briefs will be due
on or before August 18, 1965. Only counsel for the General Counsel has submitted
a brief.- - - -
Upon consideration of the Stipulation,- the above-referred to transcript of testimony
and exhibits in the matter before the U.S. District Court for the Eastern -District of
Pennsylvania,' and the formal papers- in the instant matter and the brief of counsel
for the General Counsel, I make the following: -
FINDINGS OF-FACT 2
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
This proceeding is concerned with incidents occurring at a construction site located
on the premises of the Kutztown State College in Kutztown, Pennsylvania, where the
I'waive the filing of duplicate copies of the exhibits` herein to _tlie extent requested `by
the parties. -
2The findings herein are based on uneontroverted testimony , documentary .- evidence,
and exhibits. -
1186 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General State Authority, herein called GSA, is engaged in the construction of new
college facilities. The work is being effected under separate contracts between GSA
and five companies, as follows: Potteiger Co., Inc., herein called Potteiger, has the
-general construction of the dining hall and kitchen; Coopersmith Bros., Inc., herein
called Coopersmith, has the general construction of the addition to the boiler house;
Carl Twist Electrical Supply Co., herein called Twist, has the electrical work; H. B.
Alexander & Sons, Inc. herein called Alexander, has the construction of the three-
story men's dormitory building; and General, the charging party, has the extension
of utilities, steamlines, waterlines, and sanitary sewers. Further, Leon S. Kulp, Inc.,
herein called Kulp, is a subcontractor of General, doing some of this work; i.e.
excavation work and the installation of the sanitary sewer, storm sewer and waterline.
The total of construction of these facilities is $2,899,834.
The commerce data in the record relates only to General and Alexander. General
is engaged in commercial and industrial plumbing and heating throughout the central
and eastern part of Pennsylvania. During the past year, General has purchased
from suppliers within Pennsylvania goods and materials costing approximately
-$70,000, which originated outside Pennsylvania. The total amount of General's con-
tract for the work herein is $170,000. The record shows, and Respondent concedes,
that Alexander, in connection with the cpnstruction. by it of the three-story men's
-dormitory at this site, has received materials costing approximately $100,000 from
outside Pennsylvania. The total amount of Alexander's contract is about $575,000.
The assertion of jurisdiction herein, in view of the foregoing, is warranted on the
basis-of the above-described commerce data as to Alexander.3 It is also clear, and I
-find,_that, in addition to Alexander, the other employers herein; i.e. General, Potteiger,
Coopersmith, Twist and Kulp are each engaged" in the construction industry and are
persons engaged in an industry affecting commerce within the meaning of Section
S (b) (4) of the Act 4 -
U. THE LABOR ORGANIZATION INVOLVED
-Respondent, like all building trades councils in the AFL-CIO, is governed by a
national constitution of the Building Trades Department, AFL-CIO, and is similarly
,structured. Respondent has 19 constituent locals. Each local is represented on the
Council and the size of the local determines the number of its representatives. These
representatives, or delegates, are either elected by the individual local's membership
or are business agents of the local, and each one is a member of his local. The offi-
cers of the Council are elected by the delegates. Thus, William J. Focht, a member
of the constituent local of the Brotherhood of Painters and Decorators, is a delegate
of his local and also the secretary to the Council, having been elected to the- latter
post by the delegates . According to Focht, his work as secretary includes represent-
ing the crafts that do not have business agents, e.g. "when they need help on the job
[he goes] out and help[s] them out." He testified further that the Council's purpose
is to serve its affiliates, but that the Council does not negotiate contracts with employ-
ers concerning wages, hours, and working conditions, such negotiations being handled
by the affiliate and the employer involved.
Respondent denies that it is a labor organization within the meaning of Section
2(5) of the Act, or that it has, as further alleged in the complaint, acted as an agent
of its affiliated labor organizations. Respondent appears to rely on the facts that
it has no employee membership, as such, but is comprised of delegates selected by its
19 constituent and autonomous union affiliates, and that it does not negotiate with
employers and does not enter into agreements with them concerning wages, hours and
conditions of employment. Apart from other considerations, as the Council is the
organization through which the affiliated craft unions function as a unit; as one of
the Council's functions is to organize employees of nonunion contractors for its con-
stituent locals, which it assertedly did here in authorizing the picketing of the Kutz-
town project for organizational purposes; as organizational activity, if successful,
® Local 25, International Brotherhood of Electrical Workers, AFL-CIO (Alexander H.
Cutrone d/b/a A. C. Electric), 148 NLRB 1560; see also Madison Building & Construction
Trades Council, et at. ( Wallace Hildebran-t & John Kiefer d/b/a H & K Lathing Co., et al.),
134 NLRB 517; Truck. Drivers Local Union Yo. 649 , International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers -of America, AFL (Jamestown Builders -B--
- change, Inc.), 93 NLRB 386. -
S See United Association Pipe Fitters Local Union No. 455, at al. (AmertcasaBoiler
Manufacturers Association), 154 NLRB 285; Madison Building & Construction Trades
Coun 'ail, et al. jH d K""Lathing -Go-., of al.), supra ; Sheet Metal Workers International
Association, Local Union No . 299, AFL-CIO (S. M. Kisner,- et,al., dJbJa $."M. Eisner and
,Eons), 131 ;NLRB 1196." - - -
BLDG. & CONST. TRADES COUNCIL OF READING, ETC. 1187
would in the normal course result in recognition of its constituent local or locals;
and as recognition is the sine qua non to negotiation of a collective -bargaining agree-
ment and is within the broad term "dealing with" in Section 2(5) of the Act,5 I find
that Respondent is a labor organization within the meaning of that section.6 I find
further that, in any event, Respondent acted herein as agent of its affiliated locals,
which are admittedly labor organizations within the meaning of Section 2(5) of the
Act.7
in. THE UNFAIR LABOR PRACTICES
A. The evidence
The complaint alleges, in substance, that Respondent violated Section 8(b) (4) (i)
and (H) (B) of the Act by picketing the construction site herein with an object of
forcing Potteiger, Alexander, Coopersmith, Twist, and General and other persons to
cease doing business with each other and to force or require General to cease doing
business with Kulp, its subcontractor. Respondent, as already indicated, denies
these allegations and- asserts that the purpose of the picketing was organizational.
General, as a member of the Schuylkill County Association of Plumbing Con-
tractors, is a party to an agreement with the plumbers' local in Pottsville, Pennsyl-
vania, known as Local 517 of the United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and Canada, AFL--CIO s
However, the Kutztown project is not in the jurisdiction of Local 517 but in the
jurisdiction of Local 42 of the same international. Local 42 is an affiliate of
Respondent Council. General has no contractual arrangement either with Local 42
or Respondent. Local 42 does have a contract covering work within its jurisdiction
with a group of employers of Reading, Pennsylvania.
On or about March 30, Raymond Rohrbach, a business agent of Local 42 -and a
delegate of that local to Respondent Council, visited the office trailer of General
at the jobsite and talked to J. Schreffier, Jr., the superintendent of General. Schref8er,
Junior, is also the vice president of General and the son of General's president.
Rohrbach asked him whether he had a travel card and, if he did not, would he get
one. Schreffler, Junior, who was a member of Local 517 in Pottsville, said that he
would get such a card. Rohrbach then proceeded to where Kulp's men were working
and spoke to them and their foreman. Their work encompassed the kind of work
usually done by operating engineers, laborers and plumbers . According to the uncon-
tradicted testimony of Schreffler, Junior, Rohrbach returned to the office trailer and
asked him `what kind of an outfit do-we [General] think we are , subletting out sub-
s Section 2 (5) of the Act provides : The term "labor organization"means any organiza-
tion of any kind , or any agency or-employee representation committee or plan, in which
employees participate 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
employment, or conditions of work.
O See Alton-Wood River Building and Construction Trades Council (Kopp-Evans Con-
struction Company), 144 NLRB 260, 266.
7 See Boilermakers, IBEW, 1AM, et al. (B. B . McCormick and Sons, Inc., et al.) V.
N.L.R.B., 350 F. 2d 791 enfg. 150 NLRB 363; and International Organization of Masters,
Mates and Pilots of America, Inc., et al. (Ch4cago Calumet Stevedoring ) v. N.L.R.B., 351
F. 2d 771 (C.A.D.C.).
e Section 5 of this agreement provides that: "No work covered under the terms of this
Agreement shall be sublet or contracted out to any Employer, nor shall any piping 2%
inches in diameter or over be fabricated in the shop of any Employer, unless such Em-
ployer is in agreement with this local or an affiliated local of the United Association or
unless such Employer as a consistent company policy pays to his journeymen and appren-
tices the minimum- wage rates (including overtime and other premium fringe benefit
payment ) then in effect and paid to thee journeymen and apprentices covered by this Agree-
ment ; if other mechanics are employed by such contractor . the minimum wage rates
(including overtime and other premium and fringe benefit payments ) then in effect and
paid to employees who are members of the several building trades unions In the area."
Although Respondent made reference to this section , inter alia, relating to subcontract-
ing and asserted , an effect, that General , by subcontracting with gulp was violating this
agreement , it defends its picketing herein on the sole ground that the purpose of its
picketing was to organize Kulp.
212-809-66-vol. 155-76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract [sic] to a nonunion subcontractor, Leon S. Kulp." 9 Schreffier; Junior,
testified further that when he told Rohrbach that he, Rohrbach, would have to take
the matter up with the home office, Rohrbach added that "if something wasn't done
with Leon S. Kulp that he would shut the complete job down." Rohrbach denied
that he said he would shut the-job down. Since the latter testimony is thus indirect
conflict and since I did-not take this testimony and therefore had no opportunity to
observe the demeanor of these witnesses, and since, in any event, the subsequent
events detailed hereinafter suffice for purposes of resolving the issues herein, I credit
J. Schreffier, Jr., as to his uncontroverted testimony and make no credibility findings
with respect to his controverted testimony.
It appears that Clarence Bouchat, president of Respondent, was notified that
Schreftler, Junior, had been notified about Kulp and that General was not going to
do anything about it.
Rohrbach appeared on the jobsite again on April 21. At that time, he told
Schreffler, Junior, that-he could not use certain people who had no book "in our
organization" to install pipe 10 because he had Local 42 people on the job working
on the other side of the highway. Whereupon, Schreffier, Jr., stopped the installa-
tion work and had Local 42 members come across the highway to help install the pipe.
On the morning of Friday, April 23, Respondent had its usual weekly meeting of
delegates of the Council. Present were delegates from various crafts, including
Rohrbach on behalf of Local 42. There had been discussions of the Kutztown job
at prior meetings, but at this meeting, according to Rohrbach, the Council took
definitive action and authorized the picket line with signs to organize Kulp.
Picketing of the site began on April 26. That morning, when Schref ler, Junior,
arrived at the jobsite he observed- two pickets at the gate entrance used by General's
employees, which would be the north side of the project. He also observed two
pickets on the south side, on College Boulevard, at a point leading into the boler-
room and two pickets at the West Main Street entrance, which is also on the south
- side. Kulp's employees used all three entrances. The pickets carried signs bearing
-the following legend: -
For Organized-Purposes
To Unorganized
Labor
On This Job -
TO IILIPROVF YOUR CONDITIONS -
JOIN YOUR CRAFT -UNION
BLDG. & CONSTRUCTION TRADES - -
COUNCIL OF READING -
& BERKS CO.
'Employees of General, as well as those of the-other general contractors, refused to
cross the picket line and all-work, with the-exception-of that being done by Kulp's
employees, ceased. Truckdrivers of a company making deliveries to General at the
site also refused to cross the picket line.
During the afternoon of April 29, after several days of picketing, James Schreffler,
Sr., the president of General,- had a telephone conversation with Focht, who, as
already indicated, is secretary of Respondent u Schreifler, Senior, testified that he
asked Focht -"what could be done to resolve the situation in Kutztown" and Focht
replied that two alternatives presented themselves: First, "[he] could remove the
nonunion contractor, Leon Kulp, and hire a union contractor; second [he] could
have the nonunion contractor, Leon Kulp, remove his men and hire our men which
we will provide without-him signing a contract, although there was a difference. in
opinion as to wages and the wages of the unions would have to be paid-."
Schreffler, Sr., then told Focht that he "would take'this up with [Kelp] and see what
could be one.' Focht, who was called as a witness by the General Counsel under
Olt is clear that not only General-but all the other prime contractors are anion
contractors. -
10 There is no indication in the record whether this-work was being done by General
or by gulp. -
u Schreffler, Senior, had telephoned the union hall of Respondent in Reading that morn-
ing and had asked to speak to Focht. He could not reach Focht but left a message for
Focht to return his call. Focht did so that afternoon.
BLDG. & CONST. T&ADES-COUNCIL OF READING, ETC. 1189
Section 43 (b) of the Federal Rules of Civil Procedure , was not called as a witness
by Respondent to repudiate this testimony . I credit this uncontroverted testimony.12
Picketing continued at the same locations and with the same signs until Friday,
May 21, when it was terminated by Council action. Work at the construction site
by employees of General and the other general contractors resumed on Monday,
May 24, and has continued ever since, without interruption.
B. Analysis and conclusions
Respondent contends in its answer that the picketing herein was primary picketing
directed at subcontractor Kulp and was thus not unlawful . The General Counsel,
on the other hand, asserts , in effect, that the evidence compels the conclusion that
the object of the picketing was to force General to cease doing business with its
subcontractor , Kulp. -
It appears undisputed from the foregoing ,- and I find , that Kulp is the primary
employer herein and that General, as well as Potteiger , Alexander, Coopersmith,
and Twist are secondary employers . As such, it follows that Respondent may,
under the proviso to Section 8 (b) (4) (B), lawfully engage in a "primary strike or
primary picketing" against Kulp but it may not, for proscribed objects, threaten,
restrain, or coerce these secondary employers, or induce or encourage their employees
to engage in a strike or refusal to perform services.
In support of the General Counsel's position that an object of the picketing was
to force General to cease doing business with Kuip _ is the following: On or about
March 30, about 3 weeks before the picketing began, Business Agent Rohrbach of
Local 42 and a delegate to Respondent Council from that local , visited the site and
after speaking to Kulp's employees, including the foreman , asked Schreffler, Junior,
"what kind of an outfit [does General] think [it is] subletting out contract [sic] to a
nonunion contractor ." Schreffier, Junior, told Rohrbach that he, Rohrbach, would
have to take this matter up with the home office . Thereafter, Bouchat, president of
Respondent , was told that Schreier, Junior, had been notified about Kulp and that
General was not going to do anything about it. Further , on April 29 , during the
picketing which was authorized by Respondent and resulted in the cessation of all
work except that being performed by Kulp's employees , Schreffier, Senior, had a
telephone conversation with Focht, Respondent's secretary . He asked . Focht "what
could be done to resolve the situation in Kutztown" and Focht offered two alterna-
tives, one of which was that "[General] could remove the nonunion contractor, Leon
Kulp, and hire a union contractorc o n t r a c t o r .
The evidence on object, which Respondent contends was solely to organize the
employees of Kuip, appears to consist of the testimony of Focht that Respondent
Council, at its meeting of April 23, authorized organizational picketing of Kuip with
signs to that effect; and of the picket signs themselves.
In determining whether a union's picketing at a common sites, as here , is restricted
to the primary employer, the Board , in Sailors' Union of the Pacific, AFL (Moore
Drydock Company ), 92 NLRB 547, 549, laid down certain evidentiary standards for
evaluating the objective of the picketing 13 One of the four standards to be met in
order to raise a presumption of lawful primary picketing was that the picketing dis-
closes clearly that the dispute is with the primary employer .14 Respondent Council's
picket - sign, however, names no employer . The clear - implication thereof is that
Respondent had a dispute with all of the employers on the job, which is plainly not
so, and the sign is thus not in conformity with Moore Drydock standards. The
i2 It is noted that Schreffier , Senior, became ill during -cross-examination by Respondent's
counsel and was not cross-examined as to this testimony . However, as Respondent's
counsel did not call Focht as his witness to repudiate this testimony, did not move to
strike this testimony , and, indeed , as Respondent stipulated with the other parties there-
after that the evidence taken at the hearing, inter alma; is submitted "to support the respec-
tive allegations of the Complaint and of the Answer," I perceive no basis for not relying
on the testimony of Schreffier, Senior, in this regard.
zs These standards have received court approval . See, e g., Service Trade Chauffeurs,
Salesmen & Helpers Local 145, etc. ( Howland Dry Goods, ) 191 F. 2d 65 , 67-68 (C.A. 2).
3A The other three standards are: (1) The picketing is strictly limited to times when the
sites of the dispute is located on the secondary employes s premises ; (2) at the time of
the picketing the primary employer is engaged in its normal business at the situs; and
(3) the picketing'is limited to places reasonably close to - the location of the situs. So
far as appears these three standards were complied with by Respondent.
1190 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inference is, therefore, warranted that Respondent's picketing had a secondary objec-
tive and Respondent was seeking thereby to enmesh all neutrals and accomplish its
-'goals by shutting down the entire job.
Furthermore, I find, independently of the foregoing, that the secondary objective
was- disclosed by Focht's statement to J. Schreffier, Sr., after the picketing began,
that one of the ways to resolve the labor dispute was the removal by General of
Kulp, a nonunion contractor, and the hiring of a union contractor.15
I therefore conclude from all the foregoing that the Council's above-described
conduct had as an object forcing General to cease doing business with Kulp and
that the unlwaful object was reflected in the picketing. It is, of course, immaterial,
under established Board authority 16 that Respondent may have a second lawful
objective, viz, that of organizing Kulp's employees, an issue which I do not, and
need not, decide here. Respondent is thus liable either as a labor organization or
as an agent of its affiliated unions for the inducement and encouragement of the
employees of Potteiger, Alexander, Coopersmith, Twist, and General to engage in
a strike or refusal to perform services, and for the resultant threats to, and restraint
and coercion of, these employers, for a proscribed object. Accordingly, I find that,
by the above-described conduct, Respondent violated Section 8(b) (4) (i) and (ii) (B)
of the Act 17
IV. THE REMEDY
Although the picketing has ceased, the instant case has not been rendered moot
thereby. So far as appears, the underlying dispute with Kulp has not ceased. Under
well-established authority, an unfair labor practice proceeding is not mooted by the
discontinuance of the unfair course of conduct.18
Having found that Respondent has violated Section 8(b) (4) (i) and (ii) (B) of
the Act, I will recommend that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following: -
CONCLUSIONS OF LAW
1. Respondent Council is a labor organization and/or an agent of its affiliated
locals, within the meaning of the Act. - -
2. General, Alexander, Potteiger, Coopersmith, Twist, and Kulp are engaged in
commerce or industries affecting commerce within the meaning of the Act.
3. By the conduct set forth in section III. supra, Respondent has induced and
encouraged individuals employed by General, Alexander, Potteiger, Coopersmith,
and Twist to engage in a strike or a refusal in the course of their employment to
perform services for their employer, and has threatened, coerced, and restrained
General, Alexander, Potteiger, Coopersmith, and Twist, with an object of forcing
or requiring General to cease doing business with Kulp, and has thereby engaged in
unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of
the Act. -
zc That Kulp's being nonunion was a bone of contention with General first became ap-
parent to General about 3 weeks before the picketing began when, as I have found, Rohr-
bach upbraided Schreffer, Junior, for having subcontracted to Kulp, a nonunion contractor.
16 See International Brotherhood of Electrical Workers, Local Union No. 11, AFL-CIO,
at at. (L. G. Electric Contractors, Inc.), 154 NLRB 766; Northeastern Indiana Building
and Construction Trades Council (Cen-tlivre Village Apartments ), 148 NLRB 854, enforce-
ment denied on other grounds 352 F. 2d 696 (C.A.D.C.) ; N.L.R.B. v. Denver Building and
Construction Trades Council, at at. (Gould & Preisner), 341 U.S. 675.
17 The United States District Court for the Eastern District of Pennsylvania granted
the petition of the General Counsel for an injunction under Section 10 (1) of the Act in
the aforementioned Court proceeding on-the basis of the record before it. The decision of
the District Court Is not a final adjudication on the merits, and is not. of course, res
judicata . It is the Board that has the statutory duty, under Section 10(c) of the Act. to
determine whether a person has engaged in unfair labor practices . See News Syndicate
Company, Inc., 122 NLRB 81'8, 838. enforcement denied on other grounds 279 F. 2d 323
(C.A. 2) and 365 U.S. 695; W. W. Wallwork Fargo, Inc., 123 _NLRB 91, 113, footnote 33.
I have made an independent evaluation of the testimony and of. the entire record and am
satisfied that the Act has been violated , as found above.
Is See N.L.R.B. v. Local 74, United Brotherhood of Carpenters & Joiners of America,
A.F. of L., at al., ( Watson's Specialty Store), 341 U.S. 707, 715; N.L.R.B. v. Meaia Textile
Hills, Inc., 339 U.S. 563, 567-568, United Association Pipe Fitters Local Union No. 455,
at at. (American Boiler Manufacturers Association ), supra.
BLDG . & CON 'ST. TRADES COUNCIL OF READING, ETC. 1191
4. The aforesaid unfair labor practices -are unfair -labor practices within- the mean-
ing of Section-2(6) and (7) of the Act.
RECOMMENDED - ORDER -
Upon the basis of the foregoing findings of fact and conclusions of law and upon
-the entire record in this case, and pursuant to-Section 10(c) of the National Labor
Relations Act, as amended, I recommend , in order to effectuate the policies of the
Act, that Respondent,- Building and-Construction Trades Council of Reading and
Berks County, its officers, representatives; agents, successors , and assigns , shall:
1. Cease and-desist from: -
(a) Engaging in, or inducing or encouraging any individual employed by General
Plumbing & Heating Company_ Inc., H . B. Alexander & Son, Inc., Potteiger Co.,
Inc., Coopersmith Bros., Inc., and Carl Twist Electrical Supply Co., or any other
employer engaged in commerce or in an industry affecting commerce -, except Leon
S. Kulp, Inc., to engage in a strike or a refusal in the course of their employment
to perform any -services, where an object thereof is to force or -require General
Plumbing & Heating Company, Inc., or any other employer , to cease doing business
with Leon S. Kulp, Inc. -
(b) Threatening, coercing, or restraining General Plumbing & Heating Company,
Inc., H. B. Alexander & Son, Inc., Potteiger Co., Inc., Coopersmith Bros., Inc., and
Carl Twist Electrical Supply Co., or any other person engaged in commerce or an
industry affecting commerce , -where an object thereof is to force or require General-
Plumbing & Heating Company, Inc., or any other employer, to cease doing business
with Leon S. Kulp, Inc.
2. Take the following affirmative action which I find will effectuate the policies
of the Act: -- - -
(a) Post at its offices and meeting halls copies of -the attached notice marked
"Appendix." 19 Copies of said notice to be furnished by the Regional Director for
Region 4, shall, after being duly signed by an authorized representative of Respond-
ent, be posted by Respondent immediately upon receipt thereof , and be maintained
for a period of 60 consecutive days thereafter , in conspicuous places, including all
places where notices are _ customarily posted . Reasonable steps shall be taken by
Respondent to insure that the notices are not altered, defaced, or covered by any
other material.
(b) Sign and mail sufficient copies of said notice to the said Regional Director,
for posting by General Plumbing & Heating Company, Inc., H. B. Alexander & Son,
Inc., Potteiger Co., Inc., Coopersmith Bros., Inc., and Carl Twist Electrical Supply
Co., if those persons be willing, at locations where notices to their employees are
customarily posted.
(c) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision , what steps Respondent has taken to comply herewith?o
"In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . If the Board 's Order is enforced by a decree of a United
States Court of Appeals, the notice shall be further amended by the substitution of the
words "a Decree of the United States Court of Appeals , Enforcing an Order" for the words
"a Decision and Order."
20 In the event that this Recommended Order be adopted by the Board . this provision
shall be modified to read "Notify the aforesaid Regional Director , in writing, within 10
days from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL Oun DELEGATES, OFFICERS, REPRESENTATIVES, AND AGENTS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board,- and in order to effectuate the policies of the National Labor Rela-
tions Act; as amended , we hereby notify you that: -
WE WILL NOT engage in, or induce or encourage any individual employed by
General Plumbing & Heating Company, Inc., H. B. Alexander & Son, Inc.;
Potteiger Co., Inc., Coopersmith Bros., Inc., and Carl Twist Electrical Supply
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co., or any other- employer engaged -in commerce or in an industry affecting
commerce, except Leon S. Kulp, Inc., to engage in a strike or a refusal in the-
course of their employment to perform any services, where an object thereof
is to force or require General Plumbing & Heating Company, Inc., or any other
employer, to cease doing business with Leon S. Kulp, Inc.
WE WILL NOT threaten, coerce, or restrain General Plumbing & Heating
Company, Inc., H. B. Alexander & Son, Inc., Potteiger Co., Inc., Coopersmith
Bros., Inc., and Carl Twist Electrical Supply Co., or any other person engaged
in commerce or an industry affecting commerce, where an object thereof is to
force or require General Plumbing & Heating Company, Inc., or any other
employer, to cease doing business with Leon S. Kulp, Inc.
BUILDING AND CONSTRUCTION TRADES COUNCIL
OF READING AND BERKS COUNTY,
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 597-7601. -
Burlington Food Store , Inc., and Delaware Food Store , Inc. and
Locals 1358, 1360, 1371, 1262, 1349, Retail Clerks International
Association, AFL-CIO. Case No. 4-CA-3682. November 24,
1965 - -
DECISION AND ORDER-
On September 28, 1965, Trial Examiner Sidney- Lindner issued his
Decision in the above-entitled case finding that Burlington Food
Store, Inc., and Delaware Food Store, Inc., a single Employer,
together herein called the Respondent or Employer, had engaged in
and was- engaging in certain unfair labor-practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Examiner's Decision and
a supporting brief. The General Counsel filed an answering brief and
the Charging Party- filed a statement in support of the Trial Exam-
iner's Decision.
Pursuant to the provisions of Section 3(b) of the. National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a. three-member
panel [Chairman- McCulloch and Members- Jenkins and Zagoria..
The. Board has reviewed the rulings of the Trial Examiner, includ-
ing his granting of the General Counsel's motion for judgment on the
pleadings, and finds that no prejudicial error- was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
155 NLRB No. 114.