Painters Local Union No. 720, Etc.

National Labor Relations Board - Board Decisions

Dec 23, 1965

156 N.L.R.B. 317 (N.L.R.B. 1965)

PAINTERS LOCAL UNION NO. 720, ETC. 317
rials, drawings, and material requisition cards according to job clas-
sifications; in addition, the layout men made templets for the use of
the operators and, from the materials which they received and sorted,
calculated and physically marked with a beam press or punch press the
points on the structural steel that were to be drilled. In January 1964,
two layout men were assigned to the newly created job of sequence
man. In September 1964, two more layout men were so assigned and
the job title was changed to estimator planner. The estimator plan-
ners handle the same materials as did-and to some extent still do-
the layout men, with the difference that estimator planners do not pre-
pare templets for the operators nor do they mark the holes in the
structural steel; instead they prepare a tape on an adding machine
which tells the operator where to punch the holes in the structural
steel. In addition, the estimator planners prepare inventory lists of
materials received at the plant to be used in connection with the ship-
ping of finished goods and are now involved in a companywide indus-
trial engineering planning program which is attempting to improve
work methods, job performance, and to lowering of costs.
As compared with the work performed by the layout men, which
is closely connected with that of the other employees in the bargain-
ing unit, the work of the estimator planners is almost entirely clerical
with no interchange and virtually no contact with the unit employees.
In addition, there are these differences : estimator planners are salaried
and paid twice each month, layout men, and other unit employees,
are hourly paid on a weekly basis; estimators planners work different
hours, have different medical benefits, have different plant supervi-
sion, and for accounting purposes are completely separate from the
unit employees.
In view of the foregoing, and upon the entire record, we find that
the petition for clarification is not the appropriate procedure for
resolving the issue raised in this proceeding. Accordingly, we shall
dismiss the petition.
[The Board denied the petition to amend and clarify certification.]
Painters Local Union No. 720 , Brotherhood of Painters , Decora-
tors and Paperhangers of America , AFL-CIO and J . M. Miller
Decorating Company. Case No. 19-CC-262. December 23, 1965
DECISION AND ORDER
On July 26,1965, Trial Examiner Louis S. Penfield issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
156 NLRB No. 32.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof. The General Counsel
filed a brief in opposition to the exceptions of Respondent.
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 [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent with
our opinion hereafter.
In the latter part of 1964, a new post office was erected in Butte,
Montana. The general contractor for this building was Baugh Con-
struction Company (herein called Baugh) of Seattle, Washington.
Among several subcontractors was the Charging Party, J. M. Miller
Decorating Company (herein called Miller) of Edmonds, Washing-
ton. Miller had contracted with Baugh to do all plastering and paint-
ing. Before carrying out this subcontract, Clifton L. Ming, one of
Miller's partners, had a prejob conference with William Arntson,
business representative for Respondent. Ming told Arntson that he
was a member of the Painters Union and that Miller 1 was a party
signatory to Western Washington Area collective bargaining agree-
ment between the Painters Union and employers in that area. This
agreement provides that when an employer works outside the geo-
graphical jurisdiction of the agreement he "shall comply with all
lawful clauses in the collective bargaining agreement in effect in said
other geographical jurisdiction." The Butte local agreement '2 under
which Miller was to perform contained, inter alia, the following
clauses:
No spray painting will be permitted under any circumstances
until a spray permit has been secured.
Saturday shall be a Holiday and no work may be performed
between the hours of 8 :00 A.M. and 6 :00 P.M.
1 Miller is used to designate the subcontracting entity although Ming, a partner, was
primarily involved in the dispute.
' Although Ming requested a copy of the Butte local agreement on a number of
occasions , he was not shown one until November 13, when his work on the subcontract
was nearing completion.
PAINTERS LOCAL UNION NO. 720, ETC. 319
The Contractor will notify the Joint Board, three members of
Local #720 and three members of P.D.C.A., on all overtime work.
(This would include working on Sunday) ....
Miller began to perform under its subcontract on about Septem-
ber 27, 1964, and shortly thereafter began to spray paint some cor-
rugated steel paneling. Arntson visited the jobsite and told Ming that
the Respondent's local agreement prohibited paint spraying but con-
sented to the continued spraying of the steel paneling because, during
the earlier meeting, he had not mentioned the spraying prohibition-
As for spraying any other items or otherwise deviating from the
Respondent's agreement, Ming was told that approval of the Respond-
ent's executive board would be necessary.
On October 5, Ming gave Arntson a written request asking for : (a)
the services of two painters, (b) permission to use an airless spray
gun on pumice block, (c) a copy of the local agreement, and (d) per-
mission to work Saturdays and Sundays if necessary to meet the
scheduled completion date of November 19, 1964. There was no
written reply to this request nor was oral approval ever granted.
Thereafter, Ming told Arntson that because he was not able to
supply him with help, it would be necessary to work Saturdays to meet
the deadline date for completion of their work. On Saturday, Octo-
ber 10, Ming worked on the job. Arntson warned Ming that the
Respondent would levy a fine or picket the job if there were a repeti-
tion of Saturday work. As a result, Ming tried to manage without
working Saturdays. However, Ming again resorted to spray paint-
ing and also worked on several subsequent Saturdays and on Sunday,
November 8, despite Arntson's continued protests.
In early October, Radischat, Baugh's construction superintendent
on the job, became aware of Arntson's threat to picket because of.
Ming's spray painting and Saturday work. On October 2, 1964,
Arntson sought out Radischat and warned him that, if Ming spray
painted, the Respondent would have "no alternative but to picket the:
job." 3
Throughout October and early November, Arntson warned Radi--
schat "at least once a week" that the Respondent would picket the.
job if Ming sprayed or worked Saturdays. Radischat was fearful.
that if one picket appeared at the jobsite "there wouldn't be any craft
work." He told Arntson that, because of deadline pressures, a shut-
down would work severe hardship on the contractors, but Arntson-
stated that he was not concerned with time schedules. Radischat
admits that Arntson never specifically asked him to remove Miller-
from the job, or to take any other definitive action in regard to Miller.-
8 Radischat's job diary for the month of October had several entries confirming that
the Painters' union representative had threatened to picket the job because of Miller's-
spray painting and weekend work.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record indicates that, if the Respondent were to picket, Radischat
understood that only Miller, the painting subcontractor, was to be
picketed.
. On November 13, 1964, the Respondent's executive board accom-
panied Arntson to the jobsite where Ming was again spray painting.
One member of the executive board stated that the Respondent was
not going to let an "outside contractor... step on their feet." Another
said that the job "would be shut down Monday morning." However,
the job was never shut down and the contract work was completed
in early December without further incident. The Respondent never
actually picketed the job, nor were charges made or fines levied against
either Ming or Lambert, employees of Miller.
The Trial Examiner found that the Respondent, by its agent Arnt-
son, informed Radischat, the superintendent for Baugh Construction
Company, on numerous occasions that he would picket the job if the
dispute the Respondent had with Miller, the painting subcontractor
on the job, were not resolved. The Trial Examiner then concluded
that the threat to picket the post office job was for an object of forcing
or requiring Baugh to cease doing business with Miller in violation
of Section 8(b) (4) (ii) (B) of the Act4
It is clear that the Respondent threatened to picket the post office
job if its dispute with Miller were not resolved. However, we disagree
with the Trial Examiner's further finding that the threat had the
proscribed object of forcing or requiring Baugh to cease doing busi-
ness with Miller.
As the Trial Examiner found, it is a reasonable inference that
Baugh was informed of Respondent's picketing intentions in order
to elicit its aid in resolving Respondent's dispute with Miller. But it
does not follow that the assistance which Respondent was seeking was
Baugh's removal of Miller from the job. This is not indicated by the
circumstances described above which show that Respondent never
requested Baugh to cease doing business with Miller, that Respond-
ent's dispute was not with a nonunion subcontractor but over non-
compliance by Miller with a Painters' contract, and that the picketing
threatened was of Miller. The reasonable indication is the Respond-
ent was seeking to have Baugh use its influence with Miller to have
the latter comply with the contractual provisions as requested by
Respondent. Accordingly, we find the evidence insufficient to estab-
lish an unlawful objective within the meaning of Section 8 (b) (4) -
(ii) (B), and we shall dismiss the complaint.
[The Board dismissed the complaint.]
'Section 8 ( b) (4) (ii) (B) of the Act makes it unlawful for a union to "threaten , coerce,
or restrain any person . where . an object thereof is . . . forcing or requiring
any person . . to cease doing business with any other person . . . .
PAINTERS LOCAL UNION NO. 720, ETC. 321
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Louis S. Penfield in Butte, Mon-
tana, on March 25, 1965, on a complaint of the General Counsel and answer of
Painters Local Union No. 720, Brotherhood of Painters , Decorators and Paperhangers
of America , AFL-CIO, herein called the Respondent .' The issues litigated were
whether Respondent violated Section 8(b) (4) (ii ) ( B) of the National Labor Rela-
tions Act, as amended , herein called the Act.
Upon the entire record, including consideration of briefs filed by the General
Counsel and Respondent, and upon my observation of the witnesses , I hereby make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
This proceeding is concerned with incidents occurring at a construction site located
in Butte, Montana. Baugh Construction Company, herein called Baugh, is a Wash-
ington corporation with its principal place of business located at Seattle, Washington.
Baugh is engaged in business as a general contractor in the building and construction
industry, and at all times material to this proceeding was a general contractor engaged
in the construction of a post office building at Butte, Montana. Baugh's annual gross
income exceeds $500,000, and in the construction of the aforesaid post office building
Baugh has caused building materials valued in excess of $50,000 to be shipped to the
jobsite from points located outside the State of Montana.
John M. Miller and Clifton L. Ming, co-partners, d/b/a J. M. Miller Decorating
Company, herein called Miller, are a copartnership with its principal place of business
located at Edmonds, Washington, engaged in the business of commercial and resi-
dential painting, paperhanging and decorating. At all times material to this proceed-
ing, Miller was engaged as a painting sub-contractor to perform work in connection
with the construction of the abovementioned post office building at Butte, Montana.
Miller's services under this contract had a value exceeding $8,000.
I find that Baugh and Miller are each engaged in the building and construction
industry and thus in an industry affecting commerce within the meaning of Section
8(b) (4) of the Act.2
I further find that the businesses of these companies at the post office construction
site in Butte, Montana, meet current jurisdictional standards and that it will effectuate
the policies of the Act to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Respondent.is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The primary dispute and the secondary pressure
The General Counsel contends that Respondent restrained and coerced Baugh
within the meaning of Section : 8 (b) (4) (ii ) of the Act, by threatening to picket the
post office jobsite should Miller continue to use spray equipment and to work week-
ends, and that an object of such threats was to force or require Baugh to cease doing
business with Miller . Respondent denies that it directed threats toward Baugh, or
that an object of any of its conduct at the construction site was to force or require
Baugh to cease doing business with Miller.
The facts surrounding the controversy are not in substantial dispute.
By September of 1964, Baugh, as the general contractor for the construction of the
post office, was nearing the completion of its job. This job was under the general
supervision, of Walter G . Radischat , Baugh's job superintendent . To perform the
x The complaint issued on January 14, 1965, and is based upon a charge and an
amended charge filed with the National Labor Relations Board, herein called the Board,
on November 16, 1964, and January 4, 1965, respectively. Copies of the complaint, the
charge and the amended charge have been duly served upon Respondent.
21 take official notice that the "building and construction industry causes the flow of
large ' quantities of 'goods" in interstate commerce . Sheet Metal Workers International
Association, Local Union No. 299 ( S. M. Kisner, et at., d/b /a S. M. Kisner and Sons), 131
NLRB 1196 ; N.L.R.B. v. Plumbers Union, 299 F. 2d 49.7 (C.A. 2) ; N.L.R.B. v. Interna-
tional Union of Operating Engineers , Local 571, 317 F. 2d 638 (C.A. 8).
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work, Baugh employed some employees itself, and engaged the services of subcon-
tractors. Baugh had been unable to reach satisfactory terms with a Butte painting
contractor, and in late September had subcontracted the painting work on the project
to Miller. To carry out this subcontract, Clifton L. Ming, one of the Miller partners,
accompanied by a painter named Chuck Lambert came from Washington to Butte
on or about September 24, 1964. Before commencing work, Ming had a prejob
conference with William Arntson, business representative for Respondent. Ming
explained to Arntson that he personally was a member of the Painters Union, that
Miller was party signatory to a western Washington area collective- bargaining agree-
ment between the Painters Union and employers in that area, that he would be
needing to hire painters locally for the post office job, and that he wished to abide
by the local agreement. At the same time Ming requested that Arntson supply him
with a copy of the Butte Agreement. Arntson told Ming that he would have some
difficulty supplying him with properly qualified men at all times, and advised Ming
that he could not at the time give him a copy of the local agreement because it was
then in the process of being printed.3
The western Washington area agreement to which Miller referred provides that
when an employer works outside the geographical jurisdiction of the agreement he
"shall comply with all lawful clauses in the collective bargaining agreement in effect
in said other geographical jurisdiction." It further provides that the contractor shall
obtain at least 75 percent of its employees in the local area. The Butte Local agree-
ment , among other things, contains provisions stating that no spray painting is to be
permitted "under any circumstances until a spray permit had been secured," that
"Saturday shall be a holiday and no work may be performed," and that contractors
shall not work overtime (this would include working on Sundays) without obtaining
permission from a local joint board.4 At the prejob conference Ming was not
specifically told of the spray job and weekend work provisions of the local agreement.
Arntson did tell him at this time , however, that he and Lambert could commence
work without regard to the 75 percent local hire provision inasmuch as at the time
Arntson had no qualified men to supply. It does not appear that at the prejob con-
ference Ming advised Arntson that he intended to do spray painting or to work
on weekends.
Ming and Lambert immediately commenced working on the job, among other
things, spray painting corrugated steel panels . Arntson visited the job during the
course of the first week, and for the first time advised Ming that the local agreement
prohibited the use of spray guns without a permit . Ming explained to Arntson that
he had bid the job on the assumption that he would be able to use spray guns and
this was generally permitted in the western Washington area. Arntson granted Ming
permission to finish spraying the steel panels , but told him that as to the other areas
he wished to spray which included the pumice block, the catwalk, the boilerroom,
the ducts, and the doors, spraying would not be allowed unless he could obtain a
permit from Respondent's local executive board. At or about the same time Arntson
also advised Ming of the provisions in the local agreement prohibiting work on
weekends.
After finishing the spraying of the steel panels Miller ceased spray painting for a
time and lodged a written request with Respondent 's executive board . Such request
was dated October 5, 1964, and asked for the services of two painters , for permission
to use an airless spray gun on pumice block, for a copy of the local agreement, and
for permission to work Saturdays and Sundays if necessary. No written reply to
this request was ever made by Respondent. It does not appear that permission was
ever granted to spray the pumice block, and this work was subsequently performed
in another manner. No copy of the local agreement was ever furnished to Ming
until the job was virtually completed. Miller's immediate manpower need was for
hardboard tapers and Respondent was unable to supply Miller with qualified tapers
at this time.5 Since the taping work needed to be done before much of the other
s The agreement was not shown to Ming until November 1.3 when his work on the
subcontract was nearing completion. -
I The Washington area ;agreement does not specifically forbid spray painting without a
permit, but does provide that the contractor report spray jobs to the union before a job
is started or it will be considered in violation-"of the agreement. The agreement does
not forbid work on the weekends, but it does provide that written permits shall be
obtained for weekend. work.
5 During the course of his work on the job. Miller did use the services of two painters
which he obtained through Respondent, one of whom was Arntson himself. It is not
claimed that either of these were fully qualified to do the taping work which Respond-
ent required.
PAINTERS LOCAL UNION NO. 720, ETC. 323
work could start, Ming advised Arntson that since he was unable to supply tapers,
it would be necessary for him and Lambert to do the work themselves, and for them
to work on weekends if they were to meet their schedule. On Saturday, October 10,
Ming and Lambert actually did work on the job. This weekend work was strenuously
protested by Arntson, who said that if it continued Respondent would "probably fine
us or they would start to picket the job." Ming, wishing to avoid trouble with
Respondent, for the time being ceased doing further spray work or working on
weekends.6
During the next few weeks Arntson worked as a painter during part of the time
at the jobsite, and engaged in frequent conversations with Ming concerning the prob-
lem of spray painting and weekend work. Arntson kept reiterating that if Ming tried
again to use a spray gun or to work on weekends the job "would be shut down."
Some of these conversations took place in the presence of job superintendent Rad-
ischat. Near the end of October, Ming, who was having difficulty meeting his
schedule, apparently influenced in some measure by his inability to obtain a written
copy of the local working agreement decided to, and actually did, resume spray
painting and weekend work.? Ming received strong protests from Arntson that this
was a violation of the local agreement, and further representations that if this conduct
continued the job might be picketed and shut down. By November 13, 1964, matters
came to a climax when Arntson came to the jobsite accompanied by members of
Respondent's executive board. One member told Ming that "they would not allow
an outside contractor to come in here and step on their feet" another observed that
the spraying was clearly in violation of the Agreement,8 and another stated that on
the following Monday pickets would appear on the job and it would be shut down.
The job, however, was by this time within a week or so of completion. Ming left
Butte immediately after this meeting and in Seattle filed the charges which serve as
the basis of this proceeding. Lambert was left to finish up the remaining work on
the job. This was accomplished in a relatively short time, and no further incidents
occurred.
It stands undisputed that at no time did Respondent actually picket the job or were
charges made or fines levied against either Ming or Lambert.°
The nature of the dispute between Miller and Respondent was first brought to the
attention of Radischat shortly after it arose. According to Radischat, early in October,
he was approached by Arntson who advised him that if the painters continued to
use spray guns and to work on weekends Respondent "would have no alternative
but to picket the job." This was a matter of understandable concern to Radischat,
for any picketing of the job would have the likely effect of causing employees of the
other crafts to walk off the job with the result that Baugh would find it difficult, if
not impossible, to complete the post office project in time to have the facilities avail-
able for the Christmas rush. That the dispute, and Respondent's position in regard
to it, came to Radischat's attention early in October, is further evidenced by business
entries to such effect which he made in his regular daily diary, copies of which were
forwarded to Baugh's Seattle office. In addition Radischat states that following his
first encounter with Arntson, Arntson visited the job frequently, and that at least
once a week engaged in conversations with Radischat concerning the problem he was
having with Miller, and continually representing that picketing was a possibility if
'In some measure this was made possible because Ming was successful in obtaining
qualified tapers from outside the Butte area.
7 It would appear to be Ming's position that he was justified in some measure in taking
this action by Respondent's failure to furnish him with a written copy of the local agree-
ment. As we have seen, however, Arntson kept repeatedly advising him that the local
agreement did not permit weekend work or spray work without a permit. In fact the
agreement did contain provisions to this effect. No reason appears why Ming should not
have considered that Arntson was correctly representing this to him. By the terms of
the Washington area agreement to which he was a party signatory, Ming was obligated
to abide by the local agreement. For the purposes of resolving the issues in this pro-
ceeding it is not necessary for me to pass upon king's conduct as a violation of the
contract, but I do find that this record clearly establishes that in the face of repeated
protests Ming continued to engage in conduct which Arntson insisted was violative of the
terms of the local agreement.
8 Before the job was completed Miller had sprayed all that it had planned to except
the pumice blocks.
8 The foregoing narrative of the dispute between Respondent and Miller is based-
primarily upon the credited testimony of Ming. Arntson's somewhat vague and rambling
testimony does not contradict this in any material aspect. Accordingly I find that the
events occurred in substantially the manner related above.
217-919-66-vol. 156-22 -
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller persisted in his violations of the local agreement. Radischat states that he
undertook to dissuade Arntson from picketing, pointing out the time schedule prob-
lem which faced him. Radischat states that at no time did Arntson appear impressed
with such problems, and that he continued to press for assurances that the spraying
and weekend work would be discontinued. Radischat confirms the testimony of
Ming that during the same period Ming solicited his help, and the fact that he,
Radischat, was actually present on occasions when Arntson was discussing the prob-
lem with Ming. Radischat, however, did not at any time suggest to Ming that he
desist from spraying or working on weekends if necessary, but on the contrary he
encouraged Ming to continue such practices in order that the time schedule could
be met . Radischat acknowledges, however, that at no time did Arntson specifically
ask him to remove Miller from the job, or to take any other definitive action in
regard to Miller.10
Arntson denies having conversation with Radischat which specifically concerned
the Miller problem. However, Arntson admits visiting the job regularly, and admits
talking with Ming and raising the picket issue with Ming. He also acknowledges
the presence of Radischat on some occasions, and admits that he engaged in discus-
sions with Radischat, although allegedly on matters unrelated to the dispute with
Miller. Considering the frequency of Arntson's visits and the fact that he was
visiting the job to press for compliance with the local rules, I regard it as highly
improbable that at one time or another he did not make known to Radischat the
problem with which he was so vitally concerned, and apprise Radischat of possible
consequences. I found Radischat's testimony as a whole coupled with the mutually
corroborative testimony of Ming to tell a believable story of the controversy. On
the other hand, Arntson's testimony tended to be vague and disjointed, and his
so-called denial of the conversations with Radischat was neither specific nor con-
vincing. Accordingly, I find that at various times during visits to the jobsite, Arntson
apprised Radischat of his dispute with Miller, and told himthat if it were not
resolved picketing might be forthcoming.
B. Discussion of the issues and concluding findings
Section 8(b)(4)(ii)(B) makes it unlawful for a union to "threaten, coerce, or
restrain any person ... where ... an object thereof is . . . forcing or requiring any,
person ... to cease doing business with any other person...." The only issue in
this proceeding is whether we can properly characterize Respondent's conduct as an
unlawful threat for an unlawful object A violation will be established if it can be
shown that the Respondent threatened to picket the post office job with an object of
forcing or requiring Baugh to cease doing business with Miller.il Respondent denies
that threats of any sort were directed at Baugh, and further claims that it engaged
in no conduct that can be said to have an unlawful object.
Respondent clearly had a primary dispute with Miller which centered around
Miller's alleged violation of its contractual obligations to, Respondent. As noted
above, I find no need to resolve the contract violation, for even assuming it to exist
Respondent cannot escape liability here if it be shown that it sought to remedy the
violation by exerting unlawful secondary pressure against another employer not
directly involved. Baugh and Miller stood in relationship to each other as con-
tractor and subcontractor at a common situs, with Baugh having no direct control
over Miller's relationship with his employees. I have found, contrary to Respondent's
contention, that Arntson told Radischat that he would picket the job if the dispute
with Miller were not resolved. This statement was not qualified in any way. Should
Respondent have carried out such threat, the obvious result would have been to have
restrained and coerced Baugh in completing its post office job. I find, therefore, that
Respondent, through the action of its agent, Arntson by telling Radischat that
Respondent would picket the post office job has engaged in conduct. which constitutes
a threat within the meaning of Section 8(b)(4)(ii) of the Act.
10 Following the filing of the charge Respondent's International Representative, McCabe,
came to Butte to discuss the charge with Radischat. Radischat admits that at this time
he told McCabe that he could not agree to that portion of the charge which related that
the action had been taken for the purpose of causing Baugh to cease doing business with,
Miller. McCabe testified further that Radischat also told him at this time that Respond-
ent had never taken any action which he construed as a threat against Baugh. Assum-
ing Radischat to have made both statements they appear at the most to be legal
conclusions which hardly serve to contradict Radischat's direct testimony as to what
happened at the Iobsite prior to the filing of the charge.
"District 65, Retail Wholesale & Department Store Union, AFL-CIO (Eastern Camera
A Photo Corp.), 141 NLRB 991.
PAINTERS LOCAL UNION NO. 720, ETC. 325
There remains for consideration, however, the question of whether such threat
was undertaken for the proscribed object of forcing or requiring Baugh to cease
doing business with Miller. Respondent insists that this record shows only that it
had a dispute with Miller over a contract violation, and that it has not been estab-
lished that Respondent sought to resolve the dispute by bringing about the removal
of Miller from the job through pressure on the general contractor. To support its
contention Respondent relies principally upon Radischat's undisputed testimony to
the effect that Arntson at no time directly requested that he remove Miller from the
job. However, even if we assume that Arntson never expressly asked for Miller's
removal, it does not necessarily follow that Arntson had no such object. The ultimate
conclusion is to be reached from a consideration of all that Arntson said and did,
and not from Radischat's evaluation of its meaning. According to the credited
testimony, Arntson told the general contractor on the jobsite that Respondent would
picket the job if its dispute with the subcontractor were not resolved. It is a reason-
able inference that Arntson was imparting such information to the general contractor
to elicit his aid in resolving a dispute, in which the general contractor had no direct
concern , by threatening action which could shut down the whole operation if carried
out. One method by which the general contractor might assist in resolving the issue
and accomplishing the end which Respondent sought would be to remove Miller from
the job. Respondent offers no other explanation for threatening Baugh with pickets,
and in the absence of such, I find it reasonable to infer that by such threat Respondent
undertook to put pressure on Baugh to force or require Baugh to cease doing business
with Miller. It is precisely this type of involvement of a secondary employer that
the statute proscribes. Accordingly, I find that Respondent has threatened Baugh
with picketing the post office job with an object of forcing or requiring Baugh to cease
doing business with Miller, and that by such conduct Respondent has violated Section
8(b) (4) (ii) (B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section III, above, occurring in connec-
tion with the operations of Baugh and Miller as described in section I, 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 thereof.
V. THE REMEDY
Having found that Respondent has violated Section 8(b)(4)(ii)(B) of the Act, I
shall recommend that it cease and desist therefrom, and take certain affirmative
action designed 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. Baugh and Miller are each employers within the meaning of Section 2(2) of
the Act, and are each engaged in commerce or an industry affecting commerce within
the meaning of Section 2(6) and (7) and Section 8(b) (4) of the Act.
2. Painters Local Union No. 720, Brotherhood of Painters, Decorators and Paper-
hangers of America, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening Baugh with picketing its post office job at Butte, Montana, with
an object of forcing or requiring Baugh to cease doing business with Miller, Respond-
ent has engaged. in unfair labor practices within the meaning of Section 8(b) (4) (ii)
(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning 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 pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, I recom-
mend that Respondent, Painters Local Union No. 720, Brotherhood of Painters,
Decorators and Paperhangers,of-America, AFL-CIO, its officers, representatives, and
agents, shall:
1. Cease and desist from threatening, coercing, or restraining Baugh, or any of its
subcontractors, or any other employer with picketing a jobsite where an object thereof
is to. require Baugh to cease doing business with Miller.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Post at its business offices and meeting halls , copies of the attached notice
marked "Appendix A." 12 Copies of said notice ; to be furnished by the Regional
Director for Region 19, shall , after being duly signed by Respondent 's authorized
representatives , 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 Respondent to insure that such notices are not altered , defaced, or
covered by any other material.
(b) Sign and mail copies of said notice to the Regional Director for Region 19
for posting by Baugh and Miller, those companies willing, at all locations where
notices to their employees are customarily posted.
(c) Notify the Regional Director for Region 19, in writing within 20 days from
the date of the receipt of this Decision , what steps Respondent has taken to comply
herewith 18
It is further recommended that unless on or before 20 days from the date of its
receipt of this Trial Examiner's Decision , Respondent notify the Regional Director
that he will comply with the foregoing Recommendations , the National Labor Rela-
tions Board issue an Order requiring Respondent to take the action aforesaid.
In the event that this Recommended Order be 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. In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order " shall be substituted for the words "a Decision
and Order."
' In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , In writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL MEMBERS OF PAINTERS LOCAL UNION No. 720, BROTHERHOOD OF
PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA , AFL-CIO
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 threaten , coerce, or restrain Baugh Construction Company or
any of its subcontractors with picketing a jobsite where an object thereof is to
force or require Baugh to cease doing business with Miller Decorating Company.
PAINTERS LOCAL UNION No. 720, BROTHERHOOD OF PAINTERS,
DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board 's Regional Office , 327 Logan
Building, 500 Union Street , Seattle , Washington , Telephone No. 682-4553.
Mooney Aircraft , Inc. and Lodge 725, International Association
of `Machinists, AFL-CIO. Case No. 23-CA-1475. December 23,
1965
SUPPLEMENTAL DECISION AND ORDER
On August 9, 1965, Trial Examiner Lloyd Buchanan issued his
Trial Examiner's Supplemental Decision ,' attached hereto, finding
156 NLRB No. 36.